Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/controlofuseofstOOdunnrich 


B^^HCROFT  UBRAW 


The  Control  of  Use  of 
Stream  Waters 


IN  THE 

UNITED  STATES 


A  Dissertation 


BY 

RUSSELL  L.  DUNN 


SAN  FRANCISCO,  CAL..  FEB.  22,  1910 


FROh/  R    L     DUNN 

?I2  METROP,    L»S  BANK   BLD'G 
SAN     FRANCISCO.    CAL, 


The  Control  of  Use  of 
Stream  Waters 


IN  THE 

UNITED  STATES 


A  Dissertation 


BY 

RUSSELL  L.  DUNN 


SAN  FRANCISCO,  CAL.,  FEB.  22,  1910 


The  Control  of  Use  of  Stream  Waters. 

Federeil  Policy  of  Water  Appropriation  and  Use. 

President  Taft,  in  his  recent  message  to  Congress  relating  to  the 
"Conservation  of  Natural  Resources,"  has  for  the  first  time  declared 
a  Federal  administration  policy  with  reference  to  the  appropriation  and 
use  of  stream  waters  concretely  definite  enough  to  be  intelligently 
discussed.     He  says  in  that  message : 

"With  respect  to  the  public  land  which  lies  along  the  streams  offering  oppor- 
tunity to  convert  water  power  into  transmissible  electricity,  another  important 
phase  of  the  public-land  question  is  presented.  There  are  valuable  waterpower 
sites*  through  all  the  public  land  States.  The  opinion  is  held  that  the  transfer 
of  sovereignty  from  the  Federal  Government  to  the  territorial  governments  as 
they  became  States  included  the  water  power  in  the  rivers,  except  so  far  as  that 
owned  by  riparian  proprietors.  I  do  not  think  it  necessary  to  go  into  a  discus- 
sion of  this  somewhat  mooted  question  of  law.  It  seems  to  me  sufficient  to  say 
that  the  man  who  owns  and  controls  the  land  along  the  stream  from  which  the 
power  is  to  be  converted  and  transmitted  owns  land  which  is  indispensable  to 
the  conversion  and  use  of  that  power.  I  cannot  conceive  how  the  power  in 
streams  flowing  through  the  public  lands  can  be  made  available  at  all  except 
by  using  the  land  itself  as  the  site  for  the  construction  of  the  plant  by  which 
the  power  is  generated  and  converted  and  securing  a  right  of  way  thereover  for 
transmission  lines.  Under  these  conditions,  if  the  Government  owns  the  adjacent 
land— indeed,  if  the  Government  is  the  riparian  owner — it  may  control  the  use  of 
the  waterpower  by  imposing  proper  conditions  on  the  disposition  of  the  land 
necessary  in  the  creation  and  utilization  of  the  water  power." 

♦President  Taft  seems  to  have  in  mind  "mill  seats"  as  they  are  known  in  the 
States  east  of  the  Mississippi  river.  A  dam  across  the  stream  raises  the  level  of 
the  water  and  makes  behind  it  a  mill-pond,  possibly  flooding  land  of  the  stream 
banks.  Water  is  taken  from  such  a  mill-pond  by  a  water  way  called  a  mill-race 
imd  conducted  to  a  waterwheel,  overshot,  undershot,  breast  wheel  or  low  head 
turbine,  as  the  case  may  be,  and,  passing  the  wheel  goes  back  into  its  original 
channel. 

There  is,  precisely  speaking,  no  such  entity  recognized  in  the  practice  of  the 
West  from  which  the  term  comes  as  a  "water  power  site."  There  is  a  dam 
across  the  stream  to  turn  the  water  known  as  a  "dam  site."  There  is  a  ditch, 
flume,  or  canal,  or  all  combined,  with  pipe  lines,  constituting  a  line  of  water 
conduit  from  the  diversion  dam,  which  line  may  be  as  much  as  fifty,  in  some 
instances  a  hundred  miles,  long.  The  land  on  which  this  line  of  works  is  emplaced 
is  described  as  a  "ditch  right  of  way."  Then  there  is  the  power  house,  in  which  are 
situated  the  water  wheels  and  electric  power  generators,  and  to  which  the  water  is 
conducted  under  pressure,  sometimes  with  a  head  of  more  than  2000  feet.  Its  situs 
is  the  "power  house  site."  The  water  is  wasted  from  it  into  some  natural  water 
channel,  which  may  be  entirely  outside  of  the  original  stream  watershed  from  which 
the  water  was  taken.  The  locations  of  the  dam,  ditches  and  power  house  are  deter- 
mined more  by  commercial  considerations  than  by  natural  conditions.  Sites  are 
made  rather  than  naturally  existent.  In  the  sense  in  which  the  President  appears 
lo  use  the  word  no  water-power  sites  are  "valuable"  intrinsically. 


Following  this  declaratory  statement  the  President  proceeds  to 
make  some  suggestions  as  to  the  nature  of  the  legislation  required 
of  Congress  to  establish  a  Federal  policy  which  will  control  the  use 
of  water  power  which  the  President  thinks  the  Government  may 
control.  These  suggestions  are  not  material  to  the  discussion  of  the 
right  of  the  Government  (the  Federal  Government)  to  control  the 
use  of  water  power.  If  the  right  of  such  Government  control  does 
not  exist  there  is  nothing  to  legislate  for. 

It  may  be  presumed  that  President  Taft  in  making  the  declara- 
tions quoted  above  had  in  mind  the  last  annual  report  of  his  Secretary 
of  the  Interior,  Mr.  Ballinger.    In  this  report  Secretary  Ballinger  says : 

"If  the  Federal  Government  desires  to  exercise  control  or  supervision  over 
water  power  development  on  the  public  domain,  it  can  only  do  so  by  limitations 
imposed  upon  the  disposal  of  power  and  reservoir  sites  upon  the  public  lands,  the 
waters  of  the  streams  being  subject  to  State  jurisdiction  in  their  appropriation  and 
beneficial   use." 

Contradictory  Propositions  of  Federal  Policy  Declared. 

In  these  two  quotations  the  President  and  his  Secretary  of  the 
Interior  are  maintaining  affirmatively  two  propositions  of  fact  which 
oppose  and  negative  one  the  other.  That  is  to  say  if  either  one  be 
affirmed,  then  by  reason  of  that  affirmation  the  other  must  be 
negatived. 

One  of  the  propositions  is  that  "the  waters  of  the  streams" 
(which  flow  over  or  by  public  land  of  the  United  States)  are  "subject 
to  State  jurisdiction  (State  sovereignty)  in  their  appropriation  and 
beneficial  use." 

The  other  proposition  is  that  the  Federal  Government  may 
control  the  use  of  the  water  power  (or  any  other  use  of  the  water) 
of  streams  flowing  on  or  by  (or  adjacent  to)  public  land  of  the 
United  States  by  virtue  of  the  fact  that  the  land  is  public  land  of 
the  United  States,  which  is  the  same  thing  as  saying  that  the  waters 
of  the  streams  which  flow  over,  by,  or  adjacent  to,  public  land  of  the 
United  States  are  subject  to  Federal  Government  jurisdiction  (Federal 
sovereignty)   in  their  appropriation  and  beneficial  use. 

There  can  be  only  one  sovereign  having  jurisdiction  over  the 
appropriation  and  beneficial  use  of  the  water  of  streams  flowing  over, 
by,  or  adjacent  to,  public  land  of  the  United  States.  This  is  too 
elementary  to  require  elucidation. 

The  proposition  that  the  Federal  Government  does  not  directly 
assume  jurisdiction  over  the  appropriation  and  beneficial  use  of  the 


stream  waters,  but  is  to  take  that  jurisdiction  indirectly  by  imposing 
conditions  or  limitations  (contractual  covenants)  on  the  disposal  of 
public  land  necessary  (perhaps  indispensable)  to  the  development  and 
use  of  water  power  from  the  streams,  is  a  proposition,  either,  that  one, 
(the  Federal  Government),  may  do  unto  another,  (a  sovereign  State  of 
the  United  States),  indirectly,  that  which  it  could  not  lawfully  do 
directly,  or  is  a  proposition  that  the  Federal  Government  is  the 
sovereign  of  the  public  land. 

As  to  the  latter,  it  is  well  adjudicated  law  that  the  United  States 
holds  the  public  land  not  as  the  sovereign,  but  as  proprietor — as 
proprietor  with  the  same  obligations  as  any  other  proprietor,  which 
means  subject  to  the  jurisdiction  of  the  State  and  its  laws  regulating 
the  terms  and  conditions  of  private  land  proprietorship  in  the  State, 
except  that  the  State  cannot  make  laws  which  would  nullify  as  to 
the  public  land  express  covenants  of  the  act  of  admission  of  the  State. 
Thus,  unless  the  Federal  Government  has  reserved  the  power  by  the 
terms  of  express  covenants  of  the  Act  of  Admission  of  the  State,  it  is 
subject  in  imposing  conditions  or  limitations  on  the  disposition  of 
public  land  which  would  regulate  or  control  the  appropriation  and 
use  of  stream  waters,  to  the  same  State  law  to  which  the  private 
proprietor  is  subject  in  imposing  conditions  on  the  disposition  of  his 
privately  owned  land  through  which  he  would  regulate  and  control 
the  appropriation  and  use  of  stream  waters. 

If  this  were  the  contention  of  the  President  and  Secretary  Bal- 
linger  there  would  be  no  contention  with  it.  But,  obviously  it  is  not 
their  contention,  because  the  frankly  avowed  reason  for  the  control  by 
the  Federal  Government  is  the  claim  of  some  persons  having  political 
voice  and  influence  with  the  Federal  Government  that  the  municipal 
laws  of  the  several  sovereign  States  imposing  those  conditions  on  the 
private  proprietorship  of  land  which  control  the  appropriation  and  use 
of  stream  waters  are  improvidently  conceived  and  administered. 

While  admittedly  irrelevant  to  the  argument,  the  fact  that  these 
voiceful,  influential  persons  must  be  foreigners,  because  of  their 
obvious  lack  of  the  American  sense  of  humor,  is  very  interesting  as 
suggesting  a  possible  cause  for  the  lately  developed  trend  of  our 
Federal  political  institutions  and  means  toward  foreign  standards. 
These  humor-sense-lacking  persons  do  not  seem  to  have  observed 
that  in  each  of  the  sovereign  States  of  this  Federal  Government  it  is 
the  people  of  the  State  who  are  sovereign,  and  that  the  sovereign 
people  have  an  unquestionable  right  to  conceive  and  administer  to 


6 

themselves  improvident  municipal  law  if  that  be  their  passing  idea  of 
inalienable  right  to  the  pursuit  of  happiness  or  anything  else. 

The  proposition  that  the  Federal  Government  may  do  unto  a 
State  indirectly  that  which  it  could  not  lawfully  do  directly  may  be 
disregarded.  Neither  the  President  nor  Secretary  Ballinger  would 
conceive  of  such  a  proposition. 

Contradictory     Propositions     Not    Recognized     by     President     and 
Secretary. 

That  the  President  and  Secretary  Ballinger  could  consciously 
affirm  two  propositions  which  directly,  and  indeed  obviously,  oppose 
and  negative  each  other  is  unthinkable.  They  have  just  as  obviously 
not  recognized  the  two  opposing  propositions  as  such.  The  reason  for 
this  is  that  as  they  appear  to  have  understood  the  premises  from 
which  they  started,  their  conclusions  follow  logically  and  are  under- 
standable as  entirely  consistent  with  each  other,  but  of  course  some- 
thing quite  different  in  meaning  from  the  meaning  given  to  them 
above.  The  cause  of  any  difference  in  meaning  given  to  the  con- 
clusions thus  has  its  origin  in  a  difference  of  understanding  of  the 
definition  or  meaning  of  the  premises. 

President  Taft  says  in  his  message : 

"The  opinion  is  held  that  the  transfer  of  sovereignty  from  the  Federal  Gov- 
ernment to  the  Territorial  governments  as  they  became  States  included  the  water 
power  in  the  rivers,  except  so  far  as  that  owned  by  riparian  proprietors." 

"Under  these  conditions,  if  the  Government  (Federal)  owns  the  adjacent 
land — indeed,  if  the  Government  is  the  riparian  owner — it  may  control  the 
use  of  the  water  power.     *     *    * 

"In  the  disposition  of  the  domain  (public  land)  already  granted,  many  water- 
power  sites  have  come  under  absolute  ownership,  and     *     *     * 

In  1907  President  Taft,  then  Secretary  of  War  to  President 
Roosevelt,  rendered  an  opinion  on  a  bill  which  had  been  introduced 
in  Congress  to  provide  for  and  regulate  the  use  of  the  navigable 
streams  of  the  United  States  for  the  development  of  water  power.  In 
this  opinion   he  says : 

"If  the  State  has  any  control  over  the  water  power,  which  it  may  exercise  in 
conflict  with  the  claimed  rights  of  the  riparian  owner,     *     *     *     " 

"But  with  respect  to  the  water  power  on  a  navigable  stream  *  *  *  It  is 
controlled  by  the  riparian  ownership     *     *     *     " 

All  of  these  references  by  the  President  to  "riparian  proprietor- 
ship" suggest  that  he  has  in  mind  an  idea  that  a  riparian  right  of  land 
proprietorship  is  a  sort  of  natural  right  proceeding  from  and  attached 
to  the  riparian  land  itself.    They  suggest-that  in  some  way  the  riparian 


proprietor  is  possessed  of  a  property  right  in  the  use  of  the  flow  of 
the  stream  water  which  is  inherent  in  the  riparian  land,  or  at  least 
created  for  it  before,  and  thereby  made  independent  of,  the  sovereignty 
of  the  State  and  of  the  sovereignty  of  the  Federal  Government,  and 
existent  now  outside  of  obligations  of  law  imposed  by  the  sovereign. 

If  this  idea  of  natural  right  of  riparian  proprietorship  be 
assumed — that  it  bears  with  it  a  control  of  the  use  of  the  flow  of  the 
stream  water  which  may  be  exercised  by  contract,  as  the  President 
seems  to  think  it  can  be,  free  of  obligations  to  municipal  law  which 
are  imposed  on  other  species  of  property  by  the  sovereign  State — 
then  there  is  no  contradiction  of  two  propositions  affirming  severally 
State  sovereignty  and  Federal  sovereignty,  because  the  Federal  Gov- 
ernment would  be  controlling  the  use  of  the  water  flow  of  the  streams 
as  a  riparian  land  proprietor  and  not  by  assertion  of  sovereign  right. 
Of  course  if  one  riparian  proprietor  has  natural  power  to  control  the 
use  of  the  flow  of  the  stream  waters  by  virtue  of  that  proprietorship, 
so  has  any  other  riparian  proprietor,  a  condition  which  the  President 
recognizes  and  deplores. 

Appropriation  of  the  use  of  the  flow  of  stream  waters  seems  to 
be  understood  by  President  Taft  and  Secretary  Ballinger  as  an  act 
which  begins  and  ends  with  a  compliance  by  the  intending  appropriator 
with  the  legal  forms  of  initiating  appropriation  of  the  use  of  the  flow 
of  stream  waters  prescribed  by  State  law.  Thus,  the  recognition  of 
the  State  jurisdiction  with  this  understanding  of  the  meaning  of 
appropriation  is  accomplished  by  the  Federal  Government  by  requiring 
that  an  intending  appropriator  of  the  use  of  the  stream  waters  which 
flow  over,  by,  or  adjacent  to,  public  land,  shall  have  initiated  his 
appropriation  by  complying  with  the  statutory  forms  prescribed  by 
the  State  law  before  the  Federal  Government  will  recognize  him  as 
qualified  to  contract  with  it  for  the  use  of  the  stream  waters  for 
power  development  or  other  purpose,  direct  or  ultimate.  The  Presi- 
dent and  Secretary  Ballinger  cannot  be  understanding  that  the  State 
jurisdiction  extends  beyond  the  prescription  of  the  form  of  declara- 
tion of  an  intention  to  appropriate  the  use  of  the  flow  of  the  stream 
waters,  because  they  say  that  the  Federal  Government  has  the  power 
to  exercise  control  over  the  actual  physical  act  of  appropriation  of  the 
waters  (their  diversion  from  natural  channels  of  flow),  and  use  of  the 
water,  or  of  converted  products  of  its  use  such  as  water  power  and 
electric  power,  by  imposing  (contractual)  conditions  on  the  disposition 


of  the  public  land  necessary  to  make  physical  appropriation  and  actual 
utilization  of  the  water  and  its  converted  products. 

If  this  meaning  to  stream  water  appropriation  be  assumed — 
that  it  consists  solely  of  an  act  of  declaration  of  intention  to  make  the 
appropriation  accomplished  in  the  manner  prescribed  by  the  State 
jurisdiction — then  there  is  no  contradiction  of  two  propositions  afirm- 
ing  severally  State  sovereignty  and  Federal  sovereignty,  because  there 
would  be  no  State  jurisdiction  over  the  physical  appropriation  and 
subsequent  use  of  the  stream  waters. 

Conclusions  of  President  and  Secretary  Consistent  With  Their  Under- 
standing of  Premises. 

The  conclusions  of  President  Taft  and  Secretary  Ballinger,  given 
the  meaning  which  they  evidently  intended  they  should  express — 
that  the  Federal  Government  could  control  the  use  of  stream  waters 
through  means  of  private  contract  by  imposing  conditions  on  the  dispo- 
sition of  public  land  nepessary  (more  or  less)  for  the  appropriation 
and  use  of  the  water  flow,  without  thereby  conflicting  with  a  State 
jurisdiction  over  the  appropriation  and  use  of  the  stream  waters,  or 
establishing  or  asserting  a  Federal  sovereign  jurisdiction  over  the 
pubHc  land — are  consistent  with  premises  which  assume  meanings  to 
''riparian  proprietorship"  and  "appropriation  of  stream  waters"  which 
have  been  explained  above  as  being,  probably,  the  meanings  in  which 
these  terms  were  understood  by  the  President  and  Secretary  Ballinger. 
It  is  difficult,  indeed,  to  assume  otherwise  than  that  they  understood 
these  terms  in  substance  as  they  have  been  explained  above. 

But— "riparian  proprietorship"  and  "appropriation  of  stream 
waters"  have  neither  of  them  the  meanings  which  the  President  and 
Secretary  Ballinger  seem  to  have  assumed  to  be  correct.  Giving  to 
these  terms  their  correct  meanings,  the  conclusions  which  will  follow 
their  us^  in  the  line  of  reasoning  made  by  President  Taft  and  Secre- 
tary Ballinger  are  the  contradictory  propositions  of  two  sovereign 
powers,  the  State  and  the  Federal  Government,  having  jurisdiction 
over  the  same  property. 

Riparian  Law. 

The  right  of  riparian  proprietorship,  known  commonly  as  riparian 
right,  is  defined  as  the  right  of  a  land  proprietor  whose  land  margins 
a  natural  body  of  water  (a  stream,  or  lake  in  or  through  which  there  is 


9 

a  flow  of  water)  to  have  pass  his  land  margin  the  flow  of  the  water 
undiminished  in  quantity  and  unimpaired  in  quality  from  the  condi- 
tions which  were  existent  in  the  beginning  of  his  proprietorship. 
*It  is  a  rule  of  the  English  common  law.  To  fully  understand  this 
rule  which  has  come  down  with  the  common  law  from  that  time 
immemorial  to  which  the  memory  of  man  does  not  run,  it  is  of  assist- 
ance to  recall  that,  at  that  remote  period,  the  people  of  England  had 
no  knowledge  of  precise  methods  of  measurement  as  applied  to  the 
quantity  or  quality  of  stream  water  flow,  and  made  no  uses  of  the 
flow  of  stream  waters  which  required  such  knowledge.  They  obtained 
water  for  domestic  use,  the  only  use  they  seem  to  have  made  of 
water,  from  natural  springs  and  wells,  or,  where  population  was  con- 
gested in  towns  situated  on  the  banks  of  streams  or  lakes,  by  dipping 
it  from  these  sources,  a  bucketful  at  a  time.  Such  measurements 
of  water  flow  quantity  and  quality  as  the  rule  presupposed  were 
measurements  which  the  unassisted  senses  of  sight  and  taste  could 
make.  The  first  judicial  declaration  of  the  rule  was  no  doubt  made  in 
a  case  where  the  riparian  proprietor  of  land  on  one  bank  of  a  stream 
undertook  to  divert  some  of  its  water  over  a  waterwheel  on  his  land 
without  obtaining  the  consent  of  the  riparian  proprietor  of  the  other 
bank  of  the   stream. 

This  rule  of  riparian  rights,  along  with  the  other  rules  of  the 
common  law,  was  brought  to  the  American  colonies  by  their  English 
colonists.  The  climatic  and  topographical  conditions  of  the  land  in 
the  American  colonies  differed  very  little  from  the  conditions  in 
England,  so  that  the  rule  served  its  purpose  as  well  there  as  in  the 
mother  country.  As  regards  uses  of  water  flow,  the  colonies  added 
nothing  to  what  was  already  known  in  England. 

*j  Kent  Com.,  Sec.  439.  "Every  proprietor  of  lands  on  the  banks  of  a  river 
has  naturally  an  equal  right  to  the  use  of  the  water  which  flows  in  the  stream 
adjacent  to  his  land,  as  it  was  wont  to  run,  without  diminution  or  alteration." 

Gould  on  Waters,  Sec.  204.  "The  rule  of  the  common  law  is  that  every  riparian 
owner  has  a  right  to  the  continued  natural  flow  of  the  stream,  and  that  this  right 
is  not  a  mere  easement  or  appurtenance,  but  is  inseparably  annexed  to  the  soil 
itself." 

"Riparian  proprietors  upon  both  navigable  and  innavigable  streams  are 
entitled,  in  the  absence  of  grant,  license,  or  prescription  limiting  their  rights, 
to  have  the  stream  which  washes  their  lands  flow  as  it  is  wont  by  nature,  without 
material  diminution  or  alteration." 

The  author  is  clearly  contradicting  a  declaration  of  his  first  statement  by  a 
declaration  of  his  second  statement.  In  the  first  he  declares  the  ^'riparian  right" 
inseparably  annexed  to  the  soil,  and  in  the  second  that  it  may  be  separated  by 
grant,  license  or  prescription.  A  limitation  implies  a  separation  of  part  or  whole. 
The  error  is  in  the  first  declaration. 


10 

When  the  colonies  separated  themselves  from  England  and 
organized  themselves  into  self-governing  sovereign  States,  they  sev- 
erally enacted  as  their  municipal  law  the  English  common  law  except 
as  to  rules-  which  were  inconsistent  with  their  republican  political 
institutions.  The  law  of  riparian  rights  thus  became  a  part  of  the 
municipal  law  of  the  several  original  States,  and  as  other  States 
(having  reference  to  States  east  of  the  Mississippi  River)  became 
organized  from  contiguous  territory  by  settlers  from  the  original 
thirteen,  it  became  part  of  their  municipal  law. 

Under  this  rule  property  rights  vested  and  were  adjudicated 
without  any  conditions  becoming  created  in  States  east  of  the 
Mississippi  River  (until  within  the  last  few  years)  which  suggested 
that  their  solution  required  a  precise  definition  of  the  essential  nature 
of  riparian  rights.  It  is  quite  easy  to  understand  how,  in  the  absence 
of  any  question  forcing  an  adjudication  based  on  the  essential  nature 
of  riparian  rights  as  against  an  adjudication  based  on  direct  applica- 
tion of  the  rule  as  it  reads  and  as  precedent  had  read  it,  the  essential 
nature  of  the  property  right  for  which  the  rule  was  originally  created 
has  become  as  overlooked  as  if  it  had  no  existence.  It  is  quite  easy 
to  understand  how  riparian  rights  in  common  acceptance  and  appar- 
ently in  acceptance  by  President  Taft  and  Secretary  Ballinger,  have 
become  considered  to  be  substantially  natural  rights  vested  in  riparian 
proprietorship  free  of  obligations  to  sovereign  law. 

A  curious  consequence  of  overlooking  the  essential  nature  of 
riparian  rights  is  illustrated  by  a  case  recently  adjudicated.  A  New 
Jersey  city  situated  on  a  river  brought  an  action  against  the  water 
supply  corporation  supplying  it  with  water  asking  the  Court  to  enjoin 
the  company  from  taking  the  water  which  it  supplied  to  the  inhabi- 
tants of  the  city  from  the  headwaters  of  the  river  on  which  the  city 
was  situated,  the  cause  of  action  alleged  being  that  the  water  company 
by  taking  the  water  from  the  headwaters  so  diminished  the  natural 
riparian  flow  of  the  stream  by  the  city  that  a  nuisance  was  created 
through  the  inability  of  the  reduced  flow  of  the  stream  to  carry  away 
the  sev'-erage  of  the  city  which  was  discharged  into  it.  The  city  was 
granted  the  injunction,  which  is  curious. 
Riparian  Right  an  Easement  Created  by  Sovereign  Grant. 

A  riparian  right  is  an  easement.  It  is  in  its  essence  a  servitude 
imposed  by  a  sovereign  on  the  owner  of  one  tract  of  land  within  its 
jurisdiction  and  granted  to  the  proprietor  of  another  tract  of  land 
having  a  natural  riparian  relation  to  the  first  tract.    That  the  servitude 


11 

imposed  on  the  owner  of  the  first  tract  is  the  continuance  unaltered  of 
its  natural  condition,  the  continuance  unaltered  of  the  natural  flow 
of  water  over  its  surface,  does  not  alter  the  fact  that  it  is  an  easement. 
The  fact  that  the  grant  is  a  grant  of  continuance  of  a  natural  state  or 
condition  does  not  alter  the  fact  that  the  riparian  proprietor  becomes 
possessed  of  his  riparian  right,  his  easement  on  the  land  of  another 
owner,  by  virtue  of  the  jurisdiction  of  the  sovereign  over  both  tracts. 
That  it  is  immemorial  custom  for  sovereign  grants  of  riparian  land 
to  carry  with  them  the  grants  of  the  riparian  easements  without  the 
latter  being  expressly  declared  in  the  instrument  of  grant  does  not 
alter  the  fact  that  these  easements  are  granted  property  rights  addi- 
tional to  the  land. 

A  State  of  the  United  States  of  America,  a  sovereign,  owner  of 
riparian  land  as  sovereign,  cannot  be  an  owner  of  riparian  rights  or  be 
a  riparian  proprietor.  A  State,  a  sovereign,  is  a  creator  of  riparian 
rights,  creating  a  riparian  right  or  easement  and  granting  it  con- 
currently with  a  grant  of  riparian  land,  or  creating  a  riparian  right 
or  easement  and  granting  it  concurrently  to  a  proprietor  already 
vested  with  the  fee  to  the  riparian  land. 

Riparian  Easement  Separable  From  Riparian  Land. 

The  ownership  of  a  riparian  easement  is  separable  from  the 
ownership  of  the  riparian  land.  The  owner  of  riparian  land  is  a 
riparian  proprietor  only  when  owning  with  it  the  riparian  •asement 
to  his  land. 

For  concrete  illustration  of  this  separable  status  of  the  riparian 
easement,  suppose  the  case  of  a  riparian  proprietor  owning  a  mile 
square  of  land,  one  side  of  which  a  mile  long  margins  a  stream. 
Obviously  this  proprietor  may  convey  from  the  land  side  of  his  tract 
until  he  has  reduced  his  land  ownership  to  a  strip  of  land  of  little  more 
width  than  a  line  along  the  stream  margin,  yet  with  this  strip  of  river 
edge  land  he  retains  the  ownership  of  the  original  riparian  easement 
undiminished.  Practically,  he  has  separated  what  was  riparian  land 
from  the  easement  of  the  riparian  right.  He  could  accomplish  the 
same  separation  by  conveying  the  riparian  easement  by  itself  without 
any  of  the  riparian  land.  There  is  nothing  novel  in  the  separation  by  % 
riparian  proprietor  of  his  riparian  land  from  his  riparian  right  or  ease- 
ment. It  has  been  repeatedly  done  in  old  England  and  young  Ameri- 
can States  by  riparian  proprietors  granting  to  other  riparian  pro- 
prietors more  or  less  of  their  riparian  easements  for  the  purpose  of 


12 

enabling  those  other  riparian  proprietors  to  divert  the  stream  waters 
from  their  riparian  relation  to  accomplish  uses  from  the  flow  which 
would  be  impossible  of  accomplishment  except  with  the  water* 
diverted. 

It  is  this  same  separation  of  the  riparian  easement  from  the 
riparian  public  land  which  President  Taft  and  Secretary  Ballinger 
have  in  mind  to  be  accomplished  by  the  Federal  Government.  It  is 
the  basis  of  the  kind  of  control  of  water  appropriation  and  water 
power  development  and  use  which  they  propose  for  the  Federal 
Government. 

Riparian  Easements  Implied  Grants. 

That  grants  of  riparian  easements  in  the  several  States  have 
never  been  express  grants,  that  is  to  say,  have  never  been  made 
directly  by  words  written  in  instruments  of  the  nature  of  patents  or 
their  equivalent,  but  have  always  been  grants  to  be  implied  from  the 
prior  enactment  of  the  English  common  law  rule  of  riparian  rights  as 
part  of  the  municipal  law  of  the  State,  explains  how  it  has  been  over- 
looked that  the  several  States  are  respectively  the  creators  of  riparian 
rights  or  riparian  easements,  and  are  the  sovereign  grantors  of  those 
rights  to  all  riparian  land  proprietors  in  their  respective  jurisdictions; 
and  explains  how  it  has  also  been  overlooked  that  the  time  of  creation 
of  any  particular  riparian  right  and  its  grant  to  a  riparian  land 
proprietor  cannot  be  earlier  than  the  time  of  enactment  by  the  State 
Legislature  of  the  common  law  rule  of  riparian  rights. 

That  riparian  rights  or  easements  now  in  the  possession  of 
riparian  proprietors  under  the  jurisdiction  of  any  of  the  original 
thirteen  States  are  identical  riparian  rights  or  easements  which  were 
in  the  possession  of  riparian  proprietors  under  the  royal  English 
jurisdiction  before  the  States  were,  does  not  vest  those  riparian 
rights,  so  far  as  the  State  jurisdiction  is  concerned,  as  of  a  time  before 
the  State  was.  With  the  admitted  States  no  riparian  right  was  created 
and  passed  by  grant  to  the  proprietor  of  riparian  land  earlier  than 
the  date,  subsequent  to  the  admission  of  the  State,  of  enactment  by 
the  Legislature  of  the  riparian  law,  the  only  exception  being  of 
grants  of  riparian  easements  to  riparian  land  owners,  if  there  were 
any  such,  made  by  the  former  sovereigns  of  ceded  territory  which 
passed  to  the  jurisdiction  of  the  State  after  confirmation  and  vesting 
of  the  riparian  grants  by  virtue  of  stipulations  of  the  treaty  of  cession 
to  the  United  States. 


13 

The  Federal  Government  is  sovereign  of  the  public  land  so  long 
as  it  is  under  the  direct  governmental  jurisdiction  of  the  Federal  Gov- 
ernment through  municipal  laws  enacted  by  Congress  or  by  territorial 
Legislatures.  The  grants  of  the  public  land  the  Federal  Government 
makes  while  it  has  sovereign  governmental  jurisdiction  are  sovereign 
grants.  But  its  sovereign  grants  of  riparian  land  do  not  bear  with 
them  grants  of  the  riparian  easements,  do  not  make  the  grantees 
riparian  proprietors,  unless  the  municipal  laws  enacted  by  Congress 
or  by  the  territorial  Legislatures  include  the  common  law  rule  of  the 
riparian  law. 

The  Federal  Government  is  proprietor  of  the  public  land  in  a 
State.  Its  proprietorship  is  subject  to  the  obligations  of  the  municipal 
law  of  the  State  just  as  is  any  other  proprietorship  except  as  to 
those  matters  reserved  or  obtained  by  grant  by  means  of  covenants  of 
the  Act  of  Admission  of  the  State.  If  the  Federal  Government  cov- 
enanted in  the  act  of  admission  for  the  grant  by  the  State  of  riparian 
easements  for  the  riparian  public  land  which  it  was  thereafter  to  hold 
under  the  State  jurisdiction  as  proprietor,  the  Federal  Government 
would  thereby  become  as  to  its  riparian  public  lands  a  riparian 
proprietor,  and  its  subsequent  proprietary  grants  of  riparian  public 
land  would  bear  with  them  the  riparian  easements.  If  the  State 
enacts  as  a  municipal  law  the  riparian  law,  then  the  Federal  Govern- 
ment proprietor  of  the  riparian  public  land,  the  same  as  any  other 
proprietor  of  riparian  land,  becomes  .possessed  of  the  riparian  ease- 
ments as  of  the  time  of  the  enactment,*  and  its  subsequent,  but  not 
its  prior,  proprietary  grants  of  riparian  public  lands  carry  with  them 
the  riparian  easements.  Once  riparian  easements  have  been  created 
and  passed  by  the  implied  grant  of  the  State  to  the  riparian  land 
proprietors,  they  vest  in  the  proprietors  and  the  proprietors  cannot  be 
divested  of  them  by  any  subsequent  legislative  enactment  of  municipal 
law  by  the  State  Legislature,  as,  for  example,  the  repeal  of  the  riparian 
law.  The  Federal  Government  proprietor  of  the  riparian  public  lands 
has  the  same  status  in  this  respect  as  any  other  riparian  land 
proprietor. 

*  United  States  v.  Rio  Grande  Irrigation  Company,  174,  U.  S.,  690.  "As  the 
owner  of  the  lands  bordering  on  water  courses  within  the  States,  and  either  con- 
stituting a  part  of  the  original  public  domain  or  acquired  for  special  purposes,  the 
Federal  Government  has  all  the  rights  of  a  riparian  proprietor  under  State  laws, 
and  may  make  all  needful  rules  and  regulations  for  the  use  of  its  property." 


14 

United  States  a  Riparian  Proprietor. 

Applying  this  correct  understanding  of  the  essential  nature  of 
riparian  proprietorship  in  interpreting  the  argument  of  President  Taft 
and  Secretary  Ballinger,  instead  of  their  conclusion  that  the  Federal 
Government  has  a  sort  of  natural  riparian  proprietorship  along  with 
its  proprietorship  of  the  riparian  public  land,  or  a  riparian  proprietor- 
ship established  prescriptively  and  vesting  from  its  own  sovereignty 
prior  to  that  of  the  State,  either  way  bearing  a  control  of  the  diversion 
and  utilization  of  the  flow  of  the  water  of  the  riparian  stream  on  other 
proprietary  land  than  that  of  the  Federal  Government,  which  control 
can  be  exercised  by  contract  free  of  obligations  to  State  jurisdiction — 
instead  of  their  conclusion,  it  appears  that  the  Federal  Government 
along  with  its  proprietorship  of  the  riparian  public  land  has,  or  has 
not,  riparian  rights,  and  is,  or  is  not,  a  riparian  proprietor,  according 
as  the  State  in  which  the  public  land  is  situated,  has  or  has  not, 
granted  riparian  rights  to  the  proprietors  of  riparian  lands;  and  that 
in  States  where  it  has  riparian  rights  the  Federal  Government  holds 
them  as  proprietor  under  the  State  jurisdiction  precisely  as  any  other 
riparian  proprietor,  subject  to  the  obligations  of  the  municipal  law 
of  the  State,  without  any  right  of  control  over  the  riparian  water 
flow,  or  over  its  direct  or  indirect  utilization,  than  the  municipal  laws 
of  the  State  permit  to  any  other  riparian  proprietor  in  its  jurisdiction. 
In  other  words,  the  Federal  Government  proprietor  of  riparian  public 
land  in  a  State  is  no  bigger  proprietor  than  any  plain  ordinary  citizen 
riparian  proprietor  when  it  is  a  question  of  control  of  the  diversion 
and  use  of  riparian  stream  water  flow,  and  the  State  Constitution  and 
State  Legislature  boss  all  the  riparian  proprietors. 

Appropriation  and  Use  of  Stream  Water  Flow. 

Appropriation  of  stream  water  flow  and  its  use  or  its  utilization 
are  terms  very  loosely  construed  and  understood  in  the  States  east 
of  the  Mississippi  River  where  there  has  been  no  definition  by  statute 
or  adjudication,  and  actual  appropriations  have  invariably  been  made 
by  means  of  the  opportunity  afiforded  by  riparian  proprietorship. 
Appropriation  for  the  domestic  consumption  of  cities,  where  it  could 
not  be  made  directly  from  streams  so  considerable  that  the  water  flow 
appropriated  would  not  appreciably  to  the  eye  diminish  them,  has 
been  accomplished  by  acquiring  all  of  the  riparian  proprietorships 
down  stream  from  the  situs  of  the  diversion.  Neither  water-using, 
mining   nor   irrigation   have   existed,    and   power   development   from 


15 

water  flow  has  been  accomplished  through  the  riparian  proprietorship 
of  the  riparian  lands  which  were  the  situs  of  the  diversion  of  the 
water,  its  power  developing  use,  and  the  return  of  the  water  to  the 
stream  bed.  Control  of  stream  flow  appropriation  and  use  has  been 
effected  through  adjudication  of  riparian  rights.  There  are  no  direct 
municipal  laws  of  water  appropriation  and  use  because  there  has 
never  been  a  practical  necessity  for  such  laws. 

Appropriation  of  Water  Flow.     Definition.     Water  Right. 

Appropriation  of  stream  water  flow  and  use  of  the  flow  has  a 
definite,  well  established  meaning  in  the  Pacific  Coast  and  Rocky- 
Mountain  States.  An  actual  physical  appropriation  of  a  stream  water 
flow,  accomplished  by  diversion  of  the  water  from  its  natural  situs, 
and  a  use  or  uses  of  the  water  flow,  including  uses  which  consume  or 
waste  the  water  flow,  together  constitute  a  legal  indivisible  private 
property  entity  termed  a  "water  right."  Use  of  the  appropriated  water 
is  of  the  essence  of  a  water  right.  Diversion  of  a  water  flow  from  its 
natural  stream  bed  situs  does  not  by  itself  constitute  a  water  right. 
There  is  no  private  property  or  private  right  in  physical  diversion  of 
the  water  flow  from  its  natural  situs  unless  the  water  flow  is  used. 
There  must  be  use  of  the  water  flow  to  create  the  property  right. 
Appropriation  of  water  flow  in  the  Pacific  Coast  and  Rocky  Mountain 
States  implies  use  of  the  water  flow.  Without  the  use  there  is  no 
appropriation  in  law. 

State  Sovereign  Owner  of  Right  of  Water  Appropriation  and  Use. 

The  State  is  the  sovereign  owner  of  the  right  to  appropriate  and 
use  all  of  the  stream  waters  which  are  within  the  jurisdiction  of  the 
State.  The  State  by  enactment  of  appropriate  municipal  law  permits 
the  creation  of  water  rights  by  private  persons,  that  is  to  say  the  State 
permits  private  persons  to  use  the  State's  right  to  appropriate  and  use 
the  flow  of  stream  waters. 

Water  Right  Claims. 

Water  right  claims,  as  they  are  known  in  the  Pacific  Coast  and 
Rocky  Mountain  States,  are  not  water  rights,  although  they  are  a 
species  of  property  right  commercially  traded  and  judicially  recog- 
nized. Water  right  claims  are  declarations  of  intention  made  in  a 
written  form  prescribed  by  statute  to  give  public  notice  of  intention  to 
create  water  rights  identical  with  descriptions  stated  in  the  writing. 
Commonly  referred  to  as  water  rights,  although  they  are  not,  water 


10 

right  claims  have  become  commonly  regarded  as  being  the  same  thing 
as  water  rights.  It  is  this  common  misunderstanding,  confusing  with 
the  legal  entity  of  a  completed  water  right,  a  mere  declaration  of  inten- 
tion to  create  the  water  right  which  may  never  be  anything  more  than 
an  intention — a  sort  of  legal  chrysalis  stage  for  the  water  right  through 
which  it  commonly  passes  before  having  actual  existence — hardly  a 
stage  or  condition  precedent  because  the  complete  water  right  may 
be  created  by  prescriptive  use  of  the  water  alone — which  seems  to 
be  the  misunderstanding  from  which  President  Taft  and  Secretary 
Ballinger  are  reasoning  to  mistaken  conclusions. 

By  relation,  the  permit  of  the  State  to  proprietary  possession  of 
the  water  right,  when  fully  created  by  use  of  the  water,  is  given  legal 
existence  as  of  the  day  of  the  declaration  of  the  intention  to  make 
the  appropriation  and  use, — the  water  right  claim  then  becomes  part 
of,  or  rather  becomes  merged  in  identity  with,  the  water  right. 

That  the  water  right  claim,  commonly  assumed  to  be  the  water 
right,  is  actually  nothing  but  an  uncertainly  defined  precedent  shadow 
of  a  possible  water  right,  is  very  clearly  recognized  by  the  municipal 
w^ater  right  law  of  the  Pacific  Coast  and  Rocky  Mountain  States. 
Those  municipal  laws  providing  for  declarations  of  intention  to  create 
water  rights  require  the  intending  appropriator  to  define  in  his  written 
declaration:  (i)  the  point  on  the  particular  stream  from  which  it  is 
the  intention  to  appropriate  the  flow  of  the  water;  (2)  the  quantity  of 
water  flow  proposed  to  be  appropriated ;  (3)  the  kind  of,  and  dimen- 
sions of,  waterworks  proposed  to  effect  the  diversion ;  and,  (4)  the 
use  or  uses  proposed  to  be  made  of  the  water,  and  the  place  or  places 
of  proposed  use.  Th6  same  municipal  laws  provide  that  the  intending 
appropriator  may,  with  or  without  public  notice,  change  every  one  of 
these  declarations  of  intention  except  the  particular  stream  from 
which  the  diversion  is  intended  to  be  made,  provided  only,  that  no 
v/ater  right  of  a  subsequent  appropriator  be  impaired  by  the  change 
of  an  intention  declared  by  the  initial  declaratory  notice.  The  water 
right  created  may  be,  and  usually  is,  an  altogether  different  water 
right  from  the  water  right  described  in  the  declaration  of  intention  to 
create  a  water  right. 

Proprietary  Use  of  Water  Flow  a  "Franchise"  or  "Permit"  From  State. 

The  State  does  not  grant  anything  to  the  water  appropriator  (use 
being  of  the  essence  of  the  appropriation),  but  merely  permits  the 
proprietary  use  of  some  of  its  sovereign  or  Governmental  property, 


17 

the  right  of  use  of  the  flow  of  stream  waters.  The  extent  of  the  permit 
of  the  State  is  measured  by  the  use  of  the  water.  The  essence  of  the 
permit  being  "use  of  the  water,"  the  permit  ceases  concurrently  with 
the  abandonment  of  the  use.  The  ceasing  of  the  permit  of  the  State 
does  not  constitute  a  reversion  of  the  water  right  to  the  State,  because 
there  is  no  State  grant  of  the  water  right  or  property  on  which  a 
reversion  can  operate. 

The  permit  of  the  State  to  make  proprietary  use  of  some  of  its 
Governmental  property  is  a  franchise  which  terminates  on  a  condi- 
tion concurrent.  The  water  right  or  appropriation  and  use  of  stream 
water  flow,  which  is  the  creation  of  the  proprietor,  consists  of  water- 
works construction  which  divert  the  flow  of  the  water  from  its  natural 
situs  and  complete  the  use  (irrespective  of  whether  the  use  is  domestic, 
irrigation  or  industrial  consuming  and  wasting  the  water,  or  the 
development  of  power  which  does  not  consume  or  impair  the  water), 
and  a  franchise,  the  permit  of  the  State  to  divert  and  use  the  stream 
flow.  The  termination  of  the  franchise  through  abandonment  of  the 
use  directly  brings  about  the  dissolution  of  the  water  right.  The 
State  receives  back  its  Governmental  property  and  the  proprietor 
retains  the  constructions,  his  private  property. 

Water  Right  Entity  Parallels  Street  Railway  Entity. 

The  entity  of  the  water  right  is  paralleled  by  the  entity  of  a 
street  railway,  which  consists  of  constructed  works  for  a  proprietary 
public  service  business  of  transporting  persons  within  the  municipal 
jurisdiction  of  a  city,  together  with  the  municipal  permit  or  franchise 
to  make  proprietary  use  of  certain  municipal  property,  the  streets. 
The  municipal  franchise  or  permit  to  make  proprietary  use  of  the 
streets  is  not  by  itself  the  street  railway.  The  track,  street  cars  and 
motive  power — the  physical  construction  is  not  by  itself  the  street 
railway.     Both  elements  are  indispensable. 

The  entity  of  the  water  right  (the  diversion  and  use  of  the  water 
of  the  stream  flow)  consists  of  the  constructed  waterworks,  together 
with  the  State  franchise  or  permit,  to  make  proprietary  use  of  the 
State's  property,  the  right  to  appropriate  and  use  the  stream  water 
flow.  The  State  franchise  or  permit  to  make  proprietary  use  of  the 
stream  water  flow  is  not  by  itself  the  water  right  or  the  water  appro- 
priation and  use.  The  waterworks  construction  is  not  by  itself  the 
water  right  or  the  water  appropriation  and  use.  Both  elements  are 
indispensable. 


18 

Rights  of  Emplacement  of  Waterworks. 

On  the  principle  of  law  that  that  is  certain  which  is  capable 
of  being  made  certain,  the  intending  appropriator  of  stream  water 
flow  has  the  same  legal  right  to  make  the  emplacement  of  the  water- 
works construction  on  its  necessary  situs,  using  the  necessary  land 
therefor,  before  he  has  received  th^  franchise  or  permit  of  the  State 
to  make  proprietary  use  of  the  stream  water  flow,  as  the  intending 
operator  of  a  street  railway  has  to  make  the  emplacement  of  the  street 
railway  works  on  the  necessary  land  situs  after  he  has  received  the 
franchise  or  permit  of  the  municipality  to  make  proprietary  use  of  the 
municipal  land  in  the  streets. 

Obviously,  one  proprietor  of  land  necessary  for  the  emplacement 
of  waterworks  construction  under  the  State's  permit  has  no  more 
legal  restraining  power  against  that  emplacement  than  has  any  other 
proprietor  of  land.  The  municipal  law  of  the  State  provides  the  same 
legal  restraining  power  for  all  land  proprietors.  The  Federal  Govern- 
ment proprietor  of  the  public  land  in  a  State  has  no  more  legal  restrain- 
ing power  against  the  emplacement  of  waterworks  under  the  permit 
of  the  State  on  the  public  land  than  possessed  by  other  proprietors 
against  the  emplacement  of  waterworks  under  the  permit  of  the  State 
on  their  lands.  If  the  municipal  law  of  the  State  provides,  within  the 
limits  of  the  constitutional  power  of  the  State,  for  the  invasion  of 
proprietary  land  and  the  imposing  of  servitudes  of  waterworks 
emplacement  and  flow  of  appropriated  water  on  it,  the  proprietary 
public  land  is  not  exempt  from  the  operation  of  the  municipal  law. 
The  legal  procedure  of  invasion  of  the  proprietary  public  land  and  of 
the  imposing  of  servitude  of  waterworks  emplacement  and  flow  of 
appropriated  water  on  it  may  be  a  different  procedure  from  the  legal 
procedure  of  invasion  of  other  proprietary  land  and  of  the  imposing 
of  servitudes  of  waterworks  emplacement  and  flow  of  appropriated 
water  on  it,  but  independent  of  the  difference  of  legal  procedure  the 
State  jurisdiction  effects  the  invasion. 

President  Taft  and  Secretary  Ballinger  would  seem  to  have  over- 
looked the  State  jurisdiction  over  proprietary  land  through  which  it 
may  impose  servitude  of  waterworks  emplacement  and  flow  of  appro- 
priated water  on  it,  just  as  they  seem  to  have  overlooked  the  same 
jxirisdiction  of  the  State,  which,  creating  riparian  rights,  imposed  them 
as  servitudes  of  water  flow  in  its  natural  situs  on  other  proprietary 
land.  Holding  that  the  Federal  Government  may  control  water  appro- 
priation and  use  by  imposing  conditions  upon  the  disposition  of  power 


19 

and  reservoir  sites  upon  the  public  lands,  and  contemplating  the 
exercise  of  that  control  by  means  of  the  covenants  of  leases  to  be 
made  by  the  Federal  Government  of  servitudes  of  waterworks  and 
power  developing  and  conducting  works  emplacement  and  flow  of 
appropriated  water  and  manufactured  products,  reserving  in  perpetuity 
the  fee,  they  must  be  assuming  either  that  the  States  have  no  con- 
stitutional power  to  enact  municipal  law  which  will  provide  for  the 
invasion  of  proprietary  land  and  the  imposing  on  it  of  servitude  for 
the  emplacement  of  waterworks  construction  and  flow  of  appropriated 
water  free  of  any  obligations  other  than  the  statutary  covenants 
imposed  by  the  municipal  law,  or  they  must  be  assuming  that  the 
jurisdiction  of  the  State  over  the  appropriation  and  use  of  stream 
water  flow  is  jurisdiction  only  over  the  initiatory  act  of  declaring 
intention  to  appropriate  and  use  the  water,  and  that  the  Federal  Gov- 
ernment has  direct  control  over  the  actual  diversion  and  use.  The 
first  assumption  can  only  be  supported  on  the  theory  that  the  Federal 
Government  is  sovereign  owner  of  the  public  land,  a  theory  which, 
obviously,  the  President  and  Secretary  Ballinger  do  not  hold.  Under- 
standing appropriation  and  use  of  stream  water  flow  as  a  legal  entity 
of  which  use  is  the  essence,  the  alternative  assumption  becomes  impos- 
sible unless  the  Federal  Government  has  sovereign  jurisdiction  over 
the  appropriation  and  use  of  stream  waters,  whereas  the  President 
and  Secretary  Ballinger  admit  the  State  jurisdiction  as  sovereign  as 
they  appear  to  understand  it. 

No  Conflict  Between  Application  of  Riprarian  Law  and  Law  of  Water 
Appropriation  and  Use. 

There  is  a  common  impression  that  some  way  or  other  the  law 
of  riparian  rights  and  the  law  of  water  appropriation  and  use  conflict 
in  application.  This  is  clearly  not  the  fact.  The  two  laws  deal  with 
altogether  different  subject  matters.  The  Governmental  property 
right  of  the  State  to  appropriate  and  use  the  flow  of  the  stream  waters 
in  its  jurisdiction  vested  in  the  State  with  the  beginning  of  its 
sovereignty.  The  enactment  of  municipal  laws  permitting  proprietary 
use  of  the  State  Governmental  property  right  to  appropriate  and  use 
the  flow  of  the  stream  watery  followed  as  necessity  for  them  appeared,- 
early  in  some  States,  recent  in  others,  suflferance  by  the  State  of  the 
appropriation  and  use  sometimes  taking  the  place  of  municipal  statutes 
until  municipal  statutes  recognized  the  sufferance  as  having  estab- 
lished the  permit  of  the  State  by  prescription. 

The  State's  Governmental  right  of  appropriation  and  use  of  the 


20 

flow  of  stream  waters,  use  being  of  its  essence,  cannot  be  conveyed  by 
the  State.  The  only  proprietary  estate  which  can  vest  is  the  permit  or 
franchise  of  the  State  to  make  proprietary  use  of  the  State  Govern- 
mental property  right.  The  State's  property  right  to  appropriate  and 
use  the  flow  of  the  stream  waters  cannot  lapse,  but  is  continuous. 

On  the  other  hand,  the  State  is  never  the  owner  of  riparian 
rights.  Riparian  rights  have  existence  only  as  proprietary  estates 
created  by,  and  granted  by  the  State.  Created  and  granted  by  the 
State,  the  State  can  neither  recall  nor  diminish  its  grant.  The  only 
effect  of  the  Legislature  repealing  the  riparian  law  is  that  with  its 
subsequent  grants  of  riparian  land  the  State  does  not  grant  any 
riparian  easement. 

The  State  Legislature  neglecting  to  enact  municipal  laws  per- 
mitting proprietary  use  of  the  State's  Governmental  right  to  appro- 
priate and  use  the  flow  of  the  stream  waters,  and  neglecting  to  enact 
for  the  State  itself  to  use  its  own  property,  the  riparian  proprietors, 
having  the  opportunity  by  reason  of  that  neglect,  may  and  do  become 
appropriators  of  the  flow  of  the  stream  waters  by  sufferance  of  the 
State,  and  become  recognized  by  the  State  as  possessed  of  the  State's 
permit  to  make  proprietary  use  of  its  Governmental  property  by 
prescription. 

Riparian  proprietors,  when  they  appropriate  and  use  the  flow 
of  stream  waters,  make  a  proprietary  use  of  inalienable  State  Govern- 
mental property — of  property  which  the  State  became  possessed  of 
and  holds  as  sovereign.  They  do  not  make  use  of  their  own  property 
because  they  have  no  property  estate  in  the  flow  of  the  stream  waters.* 
Their  proprietary  riparian  rights  are  nothing  but  servitudes  imposed 
on  land  naturally  under  the  stream  flow  to  have  that  land  remain 
naturally  under  the  flow  of  the  stream  w^aters.  The  easement  which 
is  property  of  the  riparian  proprietor  is  this  servitude  on  land  naturally 

*  S  Kent  Com.,  Sec  439.  "No  [riparian]  proprietor  has  a  right  to  use  the 
water,  *  *  *  unless  he  has  a  prior  right  to  divert  it,  or  a  title  to  some  ex- 
clusive enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple  usufruct 
while  it  passes  along." 

Gould  on  Waters,  Sec.  ,  204.  "The  [riparian]  proprietors  have  no  property 
in  the  flowing  .water,  which  is  indivisible  and  not  the  subject  of  riparian  owner- 
ship." 

Gould  on  Waters,  148;  Lyon  v.  Fishmongers^  Co.,  L.  R.  10,  Ch.  679.  "Owners 
merely  of  the  bed  of  the  stream  were  not  riparian  proprietors." 

The  ownership  of  the  land  under  the  water  of  a  stream  does  not  figure  at 
all  in  the  riparian  right  except  that  it  is  the  land  having  the  riparian  servitude 
imposed  on  it.  The  land  under  the  water  is  capable  of  separate  ownership 
from  the  land  of  the  banks.  Its  proprietorship  cannot  bear  with  it  a  right  of  diver- 
sion as  against  the  riparian  proprietorships  of  land  on  both  banks. 


21 

under  water.     It  is  not  a  proprietary  right  of  use  of  the  water  which 
flows  naturally  over  this  land. 

A  riparian  proprietor  owning  the  riparian  easements,  but  not 
owning  any  of  the  riparian  land,  cannot,  because  he  is  proprietor  of 
the  riparian  easement,  invade  the  riparian  land  of  which  he  is  not 
proprietor  to  obtain  situs  for  waterworks  through  which  appropria- 
tion and  use  of  the  flow  of  the  water  would  be  accomplished.  An 
owner  of  riparian  land  who  is  not  proprietor  of  the  riparian  easement, 
cannot,  because  he  possesses  a  situs  for  waterworks,  invade  the 
proprietorship  of  the  riparian  easement.  It  is  absurd  to  assume  that  a 
legal  divorcement  of  proprietorship  of  land  above  water  and  of  a  servi- 
tude on  land  beneath  water  rough-locks  the  sovereignty  of  the  State 
so  that  no  use  may  be  made  of  a  third  property  in  which  there  is  no 
proprietary  estate  whatsoever,  but  which  the  State  owns  as  sovereign. 
Certainly  the  State  may  say  what  shall  be  the  conditions  of  its 
franchise  permit  of  proprietary  use  of  its  own  property  and  may  say 
what  persons  may  have  its  franchise  or  permit,  but  no  proprietor,  not 
even  the  Federal  Government  proprietor  of  the  public  land,  may  do 
what  the  State  only  may  do. 

Qualification  to  Obtain  State's  "Franchise"  or  "Permit"  to  Use  Water. 

Some  of  the  States  east  of  the  Mississippi  River  limit  the  issue 
of  the  franchise  or  permit  of  the  State  to  appropriate  and  use  the 
flow  of  stream  waters  to  persons  who  are  proprietors  of  both  riparian 
land  and  riparian  easements.  They  require  a  property  qualification  of 
a  particular  quantity  just  as  do  some  of  the  same  States*  for  the  issue 
of  the  franchise  to  vote  at  certain  elections.  The  Pacific  Coast  and 
Rocky  Mountain  States  do  not  require  any  proprietorship  qualification 
for  persons  as  a  condition  precedent  to  the  issue  to  them  of  the  State's 
franchise  or  permit  to  appropriate  and  use  the  flow  of  the  stream 
waters,  and  they  evade  the  rough-lock  which  would  result  between  an 
immovable  body  of  proprietorships  of  land  and  of  riparian  easements, 
and  an  irresistible  force  of  sovereignty  over  the  use  of  the  stream 
water  flow,  by  providing  through  the  enactment  of  appropriate 
muncipal  law,  means  for  the  lawful  invasion,  by  the  owner  of  the 
State's  franchise  or  permit  to  use  the  water,  of  the  proprietorship  of 
the  riparian  easements  and  of  the  proprietorship  of  land.* 

*St.  Helena  Water  Co.  v.  Forbes,  62  Cal,  182,  "Under  the  laws  of  this 
State,  the  right  of  a  private  individual  to  enjoy  the  flow  of  water  in  its  natural 
channel,  upon  or  along  his  land,  can  be  condemned  for  public  use." 


22 

This  is  what  the  so-called  ''conflict"  between  the  riparian  law 
and  the  law  of  water  appropriation  and  use  really  is — a  passing  differ- 
ence between  the  old  East  and  the  young  West  of  the  mode  of  inves- 
ture  of  the  accomplishment  of  the  same  purpose — the  use  of  the  flow 
of  the  waters  of  the  streams.  But  for  the  regrettable  loss  long  since 
from  the  sum  of  human  knowledge  of  Herr  Professor  Teufelsdroesch's 
admirable  treatise  on  the  "Philosophy  of  Clothes,"  this  recent  dis- 
covery of  a  supposed  irreconcilable  conflict  as  nothing  but  a  little 
difference  in  the  family  of  States  of  mode  of  law  dress  of  an  infant 
industry  might  have  been  anticipated. 

California. — Water  Appropriation  and  Use. 

The  State  of  California  contains  a  very  large  body  of  the  public 
land.  The  flow  of  water  in  its  streams  is  available  for  a  great  variety 
and  relatively  an  enormous  quantity  of  service.  Of  water  power  alone 
the  quantity  which  can  be  made  commercially  available  is  not  less 
than  3,500,000  horsepower.  The  commercial  necessity  for  the  entire 
variety  of  service  and  ultimately  for  its  utmost  possible  quantity  is  a 
fact.  It  is  very  easy  to  be  seen  that  not  only  will  the  utmost  possible 
power  development  service  be  required  from  the  flow  of  the  water,  but 
after  that  service  has  been  taken  the  water  itself  will  be  consumed 
or  wasted  economically  in  irrigation,  manufacturing  industry  and  the 
domestic  supply  of  the  population  of  California. 

While  t]ie  water  supply  for  the  arts,  which  consume  or  waste 
water  economically,  can  be  had  for  the  most  part,  or  at  least  to  the 
extent  now  consumed  and  wasted,  from  the  flow  of  the  streams  without 
the  invasion  in  any  way  of  the  Federal  Government  proprietorship  of 
the  public  land,  practically  no  water  power  can  be  had  from  the  flow 
of  the  streams  except  there  be  more  or  less  invasion  of  that  proprietor- 
ship. This  applies  to  nearly  all  of  the  water  power  already  made 
available,  about  350,000  horsepower,  as  well  as  to  water  power  yet 
to  be  made  available,  over  3,000,000  horsepower. 

The  territory  which  is  now  the  State  of  California  was  acquired 
by  the  United  States  from  the  sovereignty  of  Mexico  by  the  Treaty 
of  Guadalupe  Hidalgo  in  1848.  By  the  treaty  the  proprietary  estates 
of  the  people  in  the  ceded  territory  at  that  time  were  confirmed  by 


23 


the  United  States.*  These  proprietary  estates  consisted  of  direct  and 
nnpHed  grants  from  the  Mexican  sovereignty  and  permits  or  franchises 
to  make  proprietary  use  of  Governmental  property  under  conditions 
prescribed  by  the  Mexican  municipal  laws. 

Mexico  had  no  municipal  law  of  riparian  rights  and  no  such 
proprietorship  as  riparian  proprietorship  existed.**  No  proprietary 
estate  originating  from  the  Mexican  sovereignty  and  confirmed  by 
the  United  States  included  a  riparian  easement.  There  was  a  Mexican 
municipal  law  of  water  appropriation  and  use,  the  prmciple  of  it 
being  identical  with  the  principle  of  the  water  appropriation  laws  of 
the  sovereign  States,  including  California,  since  created  out  of  the 
ceded  territory.  Mexico,  the  State  or  sovereign,  was  governmental 
owner  of  the  right  of  appropriation  and  use  of  the  flow  of  the  stream 
waters.  Proprietary  use  was  made  by  virtue  of  the  State  permit  or 
franchise  under  conditions  prescribed  by  the  municipal  law.  The 
conditions  were  generally  identical  with  the  conditions  since  prescribed 
in  the  municipal  laws  of  the  States  created  from  the  ceded  territory, 
indeed  the  States  copied  the  Mexican  law  and  adopted  it.  The  United 
States  ratifying  the  Treaty  of  Guadalupe  Hidalgo,  confirmed  and  con- 
tinued the  franchises  and  permits  of  the  Mexican  sovereignty  to 
make  proprietary  use  of  the  flow  of  stream  waters  as  at  that  time 
being  made,  and  many  of  those  old  appropriations  of  the  flow  of  stream 
waters  are  still  in  existence  in  California  and  in  the  Territories  of 
Arizona  and  New  Mexico. 


*  Treatv  of  Guadalupe  Hidalgo.  Article  VIII  "Mexicans  P^^,  ^st^,^lishe^  in 
territories  previously  belonging  to  Mexico,  and  which  remain  f^^ /he  future 
with  n  the  HmL  of  the  United  States,  as  defined  by  the  present  rea^',  shall  be 
7reeTo  cont  n  e'^  they  now  reside,  or  to  remove  at  any  time  to  the  Mexican 

repubHc  retaining  the  property  which  they  possess  in  the  said  territories  or 
disposing  thereof  and  removing  the  proceeds  wherever  they  please  without  their 
be  ng  ubjected,  on  this  account,  to  any  contribut  on,  tax,  or  charge  whatever.  *  *  * 
^In  the  said  territories,  property  of  every  kind,  now  belonging  to  Mexicans  no 
established  there,  shall  be  inviolably  respected.  The  present  ^^wners  the  heirs  o 
these,  and  all  Mexicans  who  may  hereafter  acquire  said  property  by  contract,  shall 
enfoy,  with  respect  to  it.  guarantees  equally  ample  as  if  the  same  belonged. to 
citizens  of  the  United  States." 

**  References  to  the  rights  of  lower  (down  stream)  land  proprietors  to 
water  appropriation  from  the  streams,  which  appear  in  laws  relating  to  water 
appropriation,  appear  to  have  no  reference  to  riparian  land  owners  down  stream, 
but  to  any  land  owners  who  would  naturally  secure  water  lower  down  stream. 
The  typical  stream  valleys  in  Mexico  are  alternating  sections  of  narrow  steep 
canyon  and  wide  flats  or  benches— valleys  formed  where  the  stream  flows  on  light 
grades  with  hill  rims  wide  apart.  The  idea  of  the  law  was  to  provide  that  one 
of  these  valleys  should  not  by  taking  all  the  water  make  the  others  of  no  value 
to  the  settlers. 


24 

Origin  of  Law  of  Water  Appropriation  and  Use. 

This  municipal  law  of  water  appropriation  and  use  which  was 
in  effect  under  the  Mexican  sovereignty  of  the  ceded  territory,  now 
in  part  the  State  of  California,  did  not  originate  with  Mexico.  It  was 
municipal  law  in  the  same  territory  under  the  sovereignty  of  Spain, 
which  immediately  preceded  that  of  Mexico.  It  did  not  originate,  in 
principle  at  least,  with  Spain.  The  Spanish  sovereignty  adopted  it 
from  the  municipal  laws  of  a  precedent  sovereignty  which  Spain  dis- 
placed by  conquest  three  centuries  earlier.  It  is,  perhaps,  the  only 
creative  thought  that  remains  in  existence  today  to  recall  the  memory 
of  a  vanished  people  whose  institutions  of  civilization  and  rules  of 
law  were  well  ordered  and  well  settled  before  that  time  immemorial 
in  England  from  which  the  common  law  rule  of  riparian  rights 
descends  to  us  without  a  birth  certificate. 

California  Admitted  to  Union. 

California  became  a  sovereign  State  by  virtue  of  the  Act  of 
Admission  on  September  9,  1850.  In  1849  the  people  resident  in  Cali- 
fornia assembled  in  a  constitutional  convention  and  adopted  a  State 
Constitution.  The  first  Legislature  was  elected,  and  by  the  terms 
of  the  Constitution,  which  had  meanwhile  been  ratified  by  a  vote  of  the 
electors,  convened  in  January,  1850,  and  proceeded  to  enact  municipal 
laws.  These  municipal  laws  were  the  first  municipal  laws  over  the 
people  of  California  regularly  in  effect  since  the  cession  of  the  territory 
by  Mexico  terminated  the  jurisdiction  of  its  municipal  laws.  During 
the  period  intervening,  the  period  between  July,  1848,  and  January, 
1850,  what  municipal  law  there  was  had  effect  merely  through  the 
acquiescence  of  the  people  without  formal  enactment  by  Govern- 
mental jurisdiction.*  California  never  was  made  a  Territory,  nor  did 
Congress  enact  any  municipal  law  for  the  people.  The  municipal  law 
accepted  was  adapted  from  the  Mexican  laws  of  the  preceding 
sovereignty,  addition  to  it  being  made  by  the  immigration  from  the 
States  of  municipal  laws  of  the  States.  Particularly  the  Mexican  law 
oi  water  appropriation  and  use  without  its  former  procedure  under  the 
Mexican  sovereignty  was  accepted  and  employed  in  making  pro- 
prietary use  of  the  flow  of  stream  waters  by  the  immigrant  people  from 
the  States  as  well  as  by  the  native  Californians.    It  was  found  adapted 

*  Lux  V.  Haggin,  69  Cal.  335.  "The  purely  municipal  law  of  Mexico  continued 
in  force  within  this  territory  (California)  until  modified  or  entirely  changed  by 
appropriate  author! ly." 


25 

to  the  conditions  of  the  gold  mining  industry,  which  was  then  becom- 
ing the  dominant  industry  of  the  State.  So  satisfactory  was  it  that 
subsequent  to  the  institution  of  the  State  it  was  continued  by  suffer- 
ance of  the  State  Legislature  as  the  law  of  water  appropriation  and 
use  without  being  formulated  into  the  statutes  until  1872,  when  it  was 
enacted  into  the  Civil  Code. 

The  Federal  Government  did  not  diminish  the  Governmental 
property  which  the  United  States  received  from  Mexico  during  the 
period  between  the  date  of  ratification  of  the  treaty  and  the  date  of 
the  Act  of  Admission  of  California.*  It  had  on  the  latter  date  the 
identical  property  to  which  it  had  succeeded  on  the  former  date. 

Act  of  Admission  of  California   a   Grant   in  Presenti   of   Sovereign 
Property. 

The  Act  of  Admission  not  only  conferred  sovereignty  on  Cali- 
fornia, but  it  was  a  grant  to  the  State  of  some  of  the  California  terri- 
torial portion  of  the  property  which  the  United  States  had  received 
from  Mexico.  As  to  the  property  granted,  the  Act  of  Admission 
was  a  grant  in  presenti,  a  present  grant,  the  State  becoming  vested 
with  the  property  granted  to  it  as  of  the  date  of  the  instrument 
of  conveyance,  the  *'Act  of  Admission."    The  Act  is  as  follows : 

ACT   FOR  THE  ADMISSION   OF  THE   STATE  OF  CALIFORNIA   INTO 

THE  UNION. 

Whereas,  The  people  of  California  have  presented  a  constitution  and  asked 
admission  into  the  Union,  which  constitution  was  submitted  to  Congress  by  the 
President  of  the  United  States,  by  message  dated  February  thirteenth,  eighteen 
hundred  and  fifty,  and  which,  on  due  examination,  is  found  to  be  republican  in  its 
form  of  government ; 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled.  That  the  State  of  California  shall  be 
one,  and  is  hereby  declared  to  be  one,  of  the  United  States  of  America,  and 
admitted  into  the  Union  on  an  equal  footing  with  the  original  States  in  all  respects 
whatever. 

2.  The  said  State  of  California  is  admitted  into  the  Union  upon  the  express 
condition  that  the  people  of  said  Stat«,  through  their  Legislature  or  otherwise, 
shall  never  interfere  with  the  primary  disposal  of  the  public  lands  within  its  limits, 
and  shall  pass  no  law  and  do  no  act  whereby  the  title  of  the  United  States  to, 
and  right  to  dispose  of,  the  same  shall  be  impaired  or  questioned;  and  that  they 
shall  never  lay  tax,  or  assessment  of  any  description  whatsoever,  upon  the  public 
domain  of  the  United  States;  and  in  no  case  shall  non-resident  proprietors,  who 
are  citizens  of  the  United  States,  be  taxed  higher  than  residents ;  and  that  all  the 
navigable  waters  within  the  said  State  shall  be  common  highways  and  forever 
free,  as  well  to  the  inhabitants  of  said  State  as  to  the  citizens  of  the  United 
States,  without  any  tax,  impost,  or  duty  therefore;  provided,  that  nothing  therein 

*  Shtvely  v.  Bozvley,  52  U.  S.,  i.  "Upon  the  acquisition  of  a  Territory  by  the 
United  States,  whether  by  cession  from  one  of  the  States,  or  by  treaty  with  a 
foreign  country,  or  by  discovery  and  settlement,  the  same  title  and  dominion 
passed  to  the  United  States,  for  the  benefit  of  the  whole  people,  and  in  trust 
for  the  several  States  to  be  ultimately  created  out  of  the  Territory." 


26 

contained  shall  be  construed  as  recognizing  or  rejecting  the  propositions  tendered 
by  the  people  of  California,  as  articles  of  compact  in  the  ordinance  adopted  by  the 
convention  which  formed  the  Constitution  of  that  State. 

3.  All  laws  of  the  United  States  which  are  not  locally  inapplicable  shall  have 
the  same  force  and  effect  within  the  said  State  of  California  as  elsewhere  within 
the  United  States. 

Approved   September  9,    1850. 

Obviously  the  United  States  did  not  grant  to  California  the 
public  land — that  portion  of  the  soil  of  the  United  States  Governmental 
land  which  was  above  the  surface  of  the  navigable  waters,  exclusive  of 
tracts  in  the  possession  of  the  Federal  Government  administration  of 
its  own  jurisdiction — but,  reserving  to  itself  the  public  land,  it 
subjected  its  continued  ownership  to  the  municipal  jurisdiction  of  the 
sovereign  State  it  had  created.  From  being  sovereign  owner  of  the 
public  land  in  California,  the  United  States  became  a  proprietary- 
owner  under  the  State  jurisdiction  or  sovereignty,  covenanting  only 
that  the  State  should  not  interfere  with  its  proprietary  primary  disposal 
of  or  tax  the  land.* 

While  not  directly  declaring  the  grant  in  express  words,  the 
United  States  nevertheless  granted  to  the  State  of  California  the  soil 
of  the  United  States  Governmental  land  which  was  underneath  the 
surface  of  the  natural  navigable  waters,  reserving  from  its  grant  the 
easement  of  a  common  free  water  highway  for  the  vessels  of  the 
citizens  of  all  of  the  States  and  of  its  own  citizens.** 

*  Woodruff  V.  North  Bloomiield  Gravel  Mining  Co.  (i8  Fed.  Rep.  p.  772). 
"Upon  the  cession  of  California  by  Mexico,  the  sovereignty  and  the  proprietorship 
of  all  the  lands  within  its  borders,  in  which  no  private  interest  had  vested  passed 
to  the  United  States.  Upon  the  admission  of  California  into  the  Union,  upon  an 
equal  footing  with  the  original  States  the  sovereignty  for  all  internal  municipal 
purposes,  and  for  all  purposes  except  such  purposes  and  with  such  powers  as 
are  expressly  conferred  upon  the  National  Government  by  the  Constitution  of  the 
United  States,  passed  to  the  State  of  California.  Thereforth,  the  only  interest 
of  the  United  States  in  the  public  lands  was  that  of  a  proprietor,  like  that  of 
any  other  proprietor,  except  that  the  State,  under  the  express  terms  upon  which 
it  was  admitted,  could  pass  no  laws  to  interfere  with  their  primary  disposal,  and 
they  were  not  subject  to  taxation.  In  all  other  respects  the  United  States  stood 
upon  the  same  footing  as  private  owners  of  land.  They  could  authorize  no  in- 
vasion  of  private  property,  either  to  enable  their  grantees  to  mine  the  lands  pur- 
chased by  them  of  the  Government,  or  otherwise." 

**  Martin  v.  Waddell,  16  Pet.  410.  "When  the  Revolution  took  place,  the  people 
of  each  State  became  themselves  sovereign,  and  in  that  character  held  the  abso- 
lute right  to  all  their  navigable  waters  and  the  soils  under  them,  subject  only 
to  the  rights  since  surrendered  by  the  Constitution  to  the  General  Government." 

U.  S.  14,  How.,  571-575-  "A  State  law  granting  exclusive  right  to  navigable 
upper  waters  of  a  river  wholly  in  the  State,  separated  from  tide  water  by  innavi- 
gable falls,  is  not  repugnant  to  the  Constitution  nor  any  law  of  the  United  States." 

Pollard's  Lesse  v.  Hagan,  3  How.,  212.  "The  navigable  waters  and  the  soils 
under  them  were  not  granted  to  the  United  States  by  any  of  the  original  States, 
but  were  reserved  to  the  States  respectively;  and  the  new  States  have  the  same 
rights,  sovereignty,  and  jurisdiction  over  this  subject  as  the  original  States." 


27 

Granting  some  land  to  the  State  of  California  and  reserving  to 
itself  the  remainder  of  the  land  as  a  proprietary  estate,  the  land  which 
the  United  States  acquired  from  Mexico  was  all  accounted  for.  There 
remained  the  sovereign  property  in  the  right  of  appropriation  and  use 
of  the  flow  of  the  stream  waters  which  the  United  States  received 
from  Mexico.  Did  the  United  States  grant  this  sovereign  property 
cf  its  own  possession  to  the  sovereignty  of  California,  vi^hich  it  created, 
or  does  the  United  States  still  own  this  property? 

Act  of  Admission  Passed  Sovereignty  of  Right  to  Appropriate  and 
Use  Water  of  Streams. 

If  the  United  States  did  not  grant  it  by  its  Act  of  Admission  to 
California,  the  United  States  is  still  sovereign  owner  of  the  right  of 
appropriation  and  use  of  the  flow  of  the  waters  of  the  streams  in  Cali- 
fornia. If  the  United  States  be  still  sovereign  owner,  the  power  of 
control,  which  President  Taft  and  Secretary  Ballinger  claim  for  the 
Federal  Government  over  the  appropriation  and  use  of  the  flow  of 
the  waters  of  streams  on,  by,  or  adjacent  to  the  United  States  pro- 
prietary public  land,  is  not  limited  in  any  way  by,  or  to,  proprietorship 
of  the  public  land,  but  is  a  sovereign  power  of  control  over  any  and 
every  appropriation  and  use  of  the  flow  of  the  water  of  the  streams  of 
California.  Every  appropriation  and  use  of  the  stream  waters  already 
made  in  California  then  must  be  a  proprietary  use  of  sovereign  prop- 
erty of  the  United  States,  under  and  by  virtue  of  the  franchise  or 
permit  of  the  Federal  Government.  Certainly  there  can  be  no  juris- 
diction of  the  State  of  California  over  any  sovereign  property  of  the 
United  States.  Any  municipal  enactment  of  the  Legislature  of  Cali- 
fornia undertaking  to  provide  terms  and  conditions  of  the  issuance  of 
the  franchise  or  permit  of  the  State  to  make  proprietary  use  of  the 
flow  of  the  stream  waters  would  be  ultra  vires,  void  because  the  State 
of  California  would  not  be  the  owner  of  the  property,  and  there 
would  be  no  jurisdiction. 

During  the  period  between  the  date  of  ratification  of  the  Treaty 
of  Guadalupe  Hidalgo,  and  the  date  of  admission  of  California,  the 
Federal  Government  did  not  by  any  act  of  Congress  grant  to  any 
proprietor  of  land  any  of  its  absolute  title  to  the  right  of  use  of  the 
flow  of  the  water  of  the  streams  in  California  which  it  acquired  from 
Mexico.  The  Federal  Government  during  this  period  did  not  by  any 
act  of  Congress  substitute  any  other  precedent  condition  for  **use"  as 
the  essence  of  its  franchise  or  permit  to  make  proprietary  appropriation 


28 

and  use  of  the  flow  of  the  stream  waters.  The  Federal  Government 
made  during  this  period  no  qualification  of  land  proprietorship  what- 
ever as  a  condition  of  the  issuance  of  the  franchise  or  permit  to  make 
proprietary  use  of  the  flovv  of  the  stream  waters  from  which  the  United 
States  proprietary  ownership  of  the  public  land  subsequent  to  the 
admission  of  California  could  become  invested  with  a  proprietary  right 
to  a  permit  or  franchise  as  of  a  date  prior  to  the  admission  of  Cali- 
fornia. 

If  a  qualification  of  land  proprietorship  to  the  possession  of  the 
permit  or  franchise  for  appropriation  and  use  of  the  water  of  the 
streams  be  assumed  as  inferable  from  the  statutes  of  the  United 
States  relating  to  the  disposal  of  the  public  land  which  were  in  force 
prior  to  the  admission  of  California,  the  efifect  would  be  to  divide  the 
use  of  the  flow  of  the  water  of  the  streams  equally  as  to  all  of  the 
public  land  (as  it  was  at  the  date  of  admission  of  California),  no  more 
and  no  less  by  franchise  or  permit  of  the  United  States  to  one  sub- 
division of  the  public  land  than  to  another  subdivision  really  equal  to 
it.  This  assumption  of  land  proprietorship  as  a  qualification  to  the 
United  States  franchise  or  permit  to  use  the  flow  of  the  stream  waters, 
v/ould  create  a  condition  equivalent  to  the  condition  that  would  exist 
were  the  right  of  use  of  the  stream  waters  the  proprietary  estate  of 
the  land  owners  including  the  United  States  as  proprietor  of  the 
public  land.  Obviously,  the  assumption  of  the  qualification  of  land 
proprietorship  as  a  condition  of  the  Federal  Government  franchise  or 
permit  to  make  proprietary  use  of  the  flow  of  the  water  of  the  streams 
in  California,  from  which  the  United  States  proprietary  ownership  of 
the  public  land  subsequent  to  admission  of  California  could  become 
invested  with  a  proprietary  right  to  a  permit  or  franchise  as  of  a  date 
prior  to  the  admission  of  California,  leads  to  inadmissible  conclusions. 

If  the  United  States,  by  the  Act  of  Admission  of  California, 
granted  to  the  State  the  sovereign  property  right  of  appropriation  and 
use  of  the  flow  of  the  water  of  the  streams  without  alteration  from 
the  substance  in  which  it  acquired  that  property  right  from  Mexico, 
the  conveyance  must  be  implied  from  the  particular  words  of  the  act, 
"and  admitted  into  the  Union  on  an  equal  footing  with  the  original 
States  in  all  respects  whatever."  The  intention  of  the  words  was  to 
imply  that  California,  successor  in  sovereignty  to  the  United  States, 
should  thereby  become  invested  as  to  sovereign  property  which  the 
United  States  then  held  in  the  Territory,  with  all  portions  of  it  of  the 
identical  nature  and  description  of  sovereign  property  which  the 
original   States   had   reserved   to   themselves   when   they   ratified  the 


29 

Constitution  of  the  United  States.  It  was  necessary  and  unavoidable 
that  the  United  States  should  grant  these  sovereign  properties  to  the 
States  it  admitted  from  territory  which  it  had  acquired  and  possessed 
in  its  sovereignty,  in  order  to  create  the  condition  of  equality  of 
sovereignty  between  the  States.* 

The  reservation  by  the  United  States  of  a  proprietary  estate  in 
the  public  land  did  not  impair  the  equality  of  sovereignty  between  the 
States  inasmuch  as  the  equitable  ownership  of  the  sovereign  over  the 
proprietary  estate  was  granted.  The  United  States  did  not  reserve  in 
the  Act  of  Admission  of  California  any  proprietary  estate  in  the 
sovereign  property  right  to  appropriate  and  use  the  flow  of  the  stream 
waters — or  rather  it  did  not  reserve  any  preference  right  to  the 
franchise  or  permit  of  the  State  to  make  proprietary  use  of  the  State's 
sovereign  property  right  to  appropriate  and  use  the  flow  of  the  stream 
waters.  Such  a  reservation  cannot  be  implied  in  the  absence  of  express 
words  of  reservation  because  there  was  no  known  state  of  facts  or 
knowledge  of  future  conditions  existing  from  which  to  imply  a  reserva- 
tion of  any  such  proprietary  estate  or  right. 

If  the  United  States  reserved  the  sovereign  property  right  of 
appropriation  and  use  of  the  flow  of  the  water  of  the  streams  which 
it  received  from  Mexico  when  it  admitted  California  as  a  sovereign 
State,  the  reservation  made  the  States  unequal  in  sovereignty — it 
admitted  California  on  an  unequal  footing  with  the  other  States 
despite  the  declaration  of  equal  footing  in  the  Act  of  Admission.  The 
mequality  would  result  because  the  original  States  did  not  grant  to 
the  United  States  their  sovereign  property  rights  to  appropriate  and 
use  the  flow  of  the  water  of  their  streams.  Congress  was  without 
power  to  create  any  inequality  of  sovereignty  between  the  States,  even 
had  it  desired  to  accomplish  it.* 

*  Pollard's  Lessee  v.  Hagan  et  ai,  3  How.  212.  "When  the  United  States 
accepted  the  cession  of  the  Territory  they  took  upon  themselves  the  trust  to 
hold  the  municipal  eminent  domain  for  the  new  States,  and  to  invest  them  with 
it  to  the  same  extent,  in  all  respects,  that  it  was  held  by  the  States  ceding  the 
Territories."     *     *    * 

"We  therefore  think  the  United  States  hold  the  public  lands  within  the  new 
States  by  force  of  the  deeds  of  cession,  and  the  statutes  connected  with  them, 
and  not  by  any  municipal  sovereignty  which  it  may  be  supposed  they  possess, 
or  have  reserved  by  compact  with  the  new  States,  for  that  particular  purpose. 

^Pollard's  Lessee  v.  Hagan  et  ai,  3  How.,  212.  "And  if  an  express  stipula- 
tion had  been  inserted  in  the  agreement  granting  the  municipal  right  of  sover- 
eignty and  eminent  domain  to  the  United  State,  such  stipulation  would  have 
been  void  and  inoperative,  because  the  United  States  have  no  constitutional 
capacity  to  exercise  municipal  jurisdiction,  sovereignty,  or  eminent  domain,  within 
the  limits  of  a  State  or  elsewhere,  except  in  the  cases  in  which  it  is  expressly 
granted." 


30 

The  discussion  here  of  whether  or  not  the  sovereign  property- 
right  of  appropriation  and  use  of  the  flow  of  the  stream  waters  was 
granted  to  California  by  the  Act  of  Admission  has  not  been  needed  to 
estabHsh  the  fact  that  the  United  States  did  thereby  grant  this 
sovereign  property  to  California  and  entirely  divest  itself  of  title 
thereto.  The  Supreme  Court  of  the  United  States  has  said  that  the 
original  States,  when  they  became  sovereign  by  the  Resovlution, 
became  sovereign  over  the  waters  within  their  territorial  limits;  that 
the  original  States  did  not  grant  the  waters  to  the  United  States,  but 
continued  to  hold  them  in  their  sovereign  jurisdiction,  and  that  the 
new  States  have  the  same  rights,  sovereignty,  and  jurisdiction  over 
their  respective  waters  as  have  the  original  States  over  theirs;  and 
that  even  if  the  Act  of  Admission  of  a  State  provided  by  express 
stipulation  for  the  exercise  by  the  United  States  of  a  municipal  right 
of  sovereignty  or  jurisdiction  within  the  State,  the  stipulation  would 
be  void  because  the  United  States  have  no  constitutional  capacity  to 
exercise  municipal  sovereignty  within  the  limits  of  a  State. 

The  discussion  has  been  made  so  that  the  dififefentiation  and 
identity  of  the  sovereign  property  right  to  appropriate  and  use  the 
water  of  the  streams,  which  the  United  States  received  by  cession 
from  Mexico,  may  be  clearly  recognized  apart  from  any  other 
sovereign  property  which  the  United  States  received  by  the  same  Act 
of  Cession,  and  so  that  it  can  be  clearly  seen  that,  in  fact  as  in  law, 
the  United  States,  without  impairing  the  aggregate  of  the  property 
or  altering  its  substance,  granted  it  in  the  precise  identity  in  which 
it  was  acquired,  a  sovereign  property,  to  the  sovereign  State  of  Cali- 
fornia by  their  Act  of  Admission. 

Riparian  Rights  in  California. 

The  first  Legislature  of  California,  convened  under  the  State 
Constitution  before  the  admission  of  the  State,  on  April  13,  1850, 
enacted  what  was  known  then  and  since  as  the  Practice  Act,  adopting 
by  a  single  sentence  the  common  law  of  England  and  making  it  the 
municipal  law  of  the  State.*  The  primary  idea  was  to  provide 
without  delay  a  Civil  Procedure  and  rules  of  decision  for  the  Courts. 

*  Chapter  95.     An  Act  Adopting  the  Common  Law.     Passed  April  13,  1830. 
The   People  of  the  State  of  California,  represented  in   Senate  and  Assembly, 
do  enact  as  follows : 

The  Common  Law  of  England,  so  far  as  it  is  not  repugnant  to  or  inconsistent 
with  the  Constitution  of  the  United  States,  or  the  Constitution  or  laws  of  the 
State  of  California,  shall  be  the  rule  of  decision  in  all  the  Courts  of  this  State. 


31 

But,  as  one  of  the  rules  of  the  common  law,  the  Legislature  enacted 
the  so-called  law  of  riparian  rights. 

When  the  United  States  admitted  California  by  the  Act  of  Admis- 
sion, the  implied  grant  by  the  State  of  riparian  easements  vested 
concurrently,  by  virtue  of  the  previous  enactment  of  the  Common  Law 
by  the  Legislature,  in  the  United  States  as  proprietor  of  the  riparian 
public  land.  This  date,  the  date  of  the  Act  of  Admission,  September  9, 
1850,  is  the  date  of  incidence  of  riparian  proprietorship  in  the  State  of 
California.  The  Act  of  the  Legislature  enacting  the  Common  Law 
before  the  State  had  de  jure  sovereignty  is  the  instrument  by  means 
of  which  the  State  of  California  created  and  granted  riparian  easements 
to  the  proprietors  of  riparian  lands. 

In  1893,  the  Legislature,  influenced  thereto  by  the  idea  of  thereby 
protecting  the  industry  of  hydraulic  mining  from  injunction  by  riparian 
proprietors,  repealed  by  statute  the  riparian  law.  The  repeal  did  not 
have  the  effect  desired  because  it  could  not  operate  to  divest  riparian 
proprietors  of  the  grant  of  riparian  easements  by  the  State  which  had 
vested  forthwith,  being  a  grant  in  presenti.  The  only  effect  of  the 
repeal  has  been  that  grants  by  the  State  of  its  riparian  public  land 
have,  since  the  repeal  of  the  riparian  law,  been  made  without  the 
additional  grant  of  riparian  easements. 

Riparian  Rights  of  United  States  in  California. 

The  United  States  proprietor  of  public  land  in  California  is  pos- 
sessed of  riparian  easements  to  its  proprietorship  of  riparian  public 
land.  The  title  o^f  the  United  States  proprietor  of  riparian  easements 
is  held  subject  to  the  same  conditions  of  the  municipal  law  of  the  State 
as  is  the  title  of  any  other  proprietor  of  riparian  easements. 

An  invasion  of  the  riparian  proprietorship  of  the  United  States  by 
the  holder  of  a  permit  or  franchise  of  the  State  to  appropriate  and  use 
the  flow  of  the  water  of  the  stream  bears  the  same  consequences  to 
the  United  States  proprietorship  that  it  does  to  any  other  riparian  pro- 
prietorship.* Sufferance  of  the  invasion  of  a  statutory  period  operates  to 
subrogate  the  riparian  easement  to  the  operation  of  the  State's  permit 
during  its  term  without  compensation  for  the  loss  or  damage,  if  any, 
to  the  riparian  proprietor.  It  is  common,  under  such  a  condition,  to 
describe  the  right  of  water  appropriation  and  use,  the  water  right,  as 

*  Kansas  v.  Colorado,  206  U.  S.,  46.  "Where  the  Federal  Government  is  not 
interested  as  the  owner  of  riparian  lands,  the  only  interest  it  has  in  the  water 
of  a  stream  is  as  to  its  use  for  purposes  of  navigation,  and  it  can  lay  no  claim 
to  the  use  of  the  water  for  any  other  purpose,  not  even  for  irrigation." 


32 

being  vested  by  prescription  as  against  the  ripafian  right  of  its  pro- 
prietor. Speaking  more  precisely,  the  right  of  water  appropriation, 
the  permit  or  franchise  of  the  State  to  make  proprietary  use  of  the 
flow  of  the  water  of  the  stream,  has  become  temporarily  dominant  over 
the  proprietorship  of  the  riparian  easement.  When  the  water  appro- 
priation ceases,  when  the  permit  of  the  State  ends  its  term,  the  riparian 
proprietor  receives  back  his  riparian  easement  unimpaired. 

Proprietary  appropriation  and  use  of  the  flow  of  the  water  of 
many  streams  has  become  vested  against,  or  dominant  over,  the  United 
States  riparian  proprietorship  on  those  streams  through  prescription. 
The  sufferance  of  the  prescription  by  the  United  States  has,  how- 
ever, caused  it  no  loss,  since  the  United  States  have  heretofore  made 
and  do  now  make  disposal  of  parcels  of  riparian  public  land  at  the 
same  unit  prices  as  made  for  the  disposal  of  public  land  not  riparian. 
The  sufferance  of  the  United  States  in  permitting  the  statute  of  limita- 
tions to  run  in  favor  of  the  holder  of  the  State's  permit  to  appropriate 
and  use  the  flow  of  the  water  of  the  streams  during  any  period  of 
so-called  permanent  reservation  of  public  land  from  disposal  can  cause 
the  United  States  no  loss  or  damage  because  the  United  States  during 
the  period  of  withdrawal  from  disposal  can  make  no  income  earning 
use  of  the  riparian  land  which  the  existence  of  the  riparian  proprietor- 
ship will  increase. 

.  The  United  States  riparian  proprietor  has  an  equal  right  to -that  of 
any  other  riparian  proprietor  to  enjoin,  under  the  provisions  of  the 
municipal  law  of  California,  the  invasion  of  its  riparian  easements  by 
the  holder  of  the  permit  of  the  State  to  appropriate  and  use  the  flow 
of  water  of  the  streams."^   It  is  entitled,  equally  with* any  other  riparian 

*  Lux  V.  Haggin,  69  Cal.,  .?.?^.  If  the  innavigable  rivers  and  their  beds  be- 
longed to  the  State  (California)  when  admitted  into  the  Union,  the  State  could 
grant  or  surrender  them  to  the  riparian  proprietors,  of  whom  the  United  States 
was  one. 

This  case  illustrates  the  confusion  in  the  mind  of  a  Court  when  it  undertook 
to  deal  with  the  riparian  law  on  the  theory  that  it  was  a  law  applying  to  the 
appropriation  and  use  of  water.  In  the  first  place  there  is  no  property  in  flowing 
water — only  property  in  its  use  as  it  passes.  The  "innavigable  rivers"  could  not 
have  belonged  to  the  State  (California)  when  admitted  into  the  Union.  Before 
Admission,  California  was  simply  a  name,  not  a  sovereignty,  such  for  instance  as 
Texas  was  before  its  Admission.  California  was  not  a  Territory  of  the  United 
States  before  Admission— it  was  merely  territorial  land  of  the  United  States. 
Admission  obviously  did  not  grant  to  California  the  "innavigable  river  beds,"  but 
reserved  them  to  the  United  States  as  an  unsegregated  part  of  its  proprietary  public 
land.  The  rivers  themselves  (the  waters)  were  not  granted  to  California  by 
Admission  because  the  flowing  water  was  not  capable  of  being  owned  as  property. 


33 

proprietor,  to  prove  loss  and  damage  and  to  have  compensation  there- 
for, in  the  event  of  invasion  of  riparian  easements  by  a  holder  of  the 
State's  permit  to  appropriate  and  use  the  flow  of  the  water.  Practically 
the  United  States  never  enjoins  against  invasion  of  its  riparian  pro- 
prietorship simply  because  it  would  find  itself  absolutely  unable  to 
prove  loss  or  damage  consequent  on  the  invasion. 

The  holder  of  the  permit  of  the  State  to  appropriate  the  flow  of 
the  water  of  a  stream  for  a  public  use,  as  distinguished  from  a  private 
use,  may,  under  the  municipal  law  of  the  State,  invade  the  riparian 
easements  (except  those  owned  by  the  United  States)  by  an  action  to 
condemn  them,  the  payment  of  the  valuation  fixed  by  the  Court  con- 
veying the  proprietary  title  to  the  riparian  easements  condemned  from 
the  defendant  riparian  proprietor  to  the  holder  of  the  State's  permit. 
No  right  of  action  to  invade  riparian  easements  owned  by  the  United 
States  is  necessary  because  there  is  no  value  of  a  riparian  easement 
to  riparian  public  land  which  can  be  established  under  the  conditions 
of  disposal  of  the  public  land  which  the  United  States  has  elected. 

There  were  no  riparian  proprietors  in  California  until  the  Act  of  Admission  by 
erecting  California  into  a  sovereignty  gave  it  power  to  create  and  grant  easements 
to  proprietors.  It  did  then,  concurrently,  create  riparian  easements  and  grant  them, 
creating  riparian  proprietorships,  of  whom  the  United  States  was  one  along  with 
the  owners  of  riparian  land  under  the  former  Mexican  sovereignty. 

Further,  the  ownership  of  the  beds  of  the  rivers,  whether  navigable  or  "innavi- 
gable," is  not  material  to  the  riparian  rights  of  riparian  proprietors.  The  land  of  the 
river  bed  carries  the  burden  of  the  servitude  or  emplacement  on  it  of  the  water  flow 
of  the  river  no  matter  who  the  riparian  proprietors  may  be.  The  owner  of  the  river 
bed  is  obviously  benefited  when  anyone  removes  the  water  flow  from  it,  but  has  no 
right  of  removal  of  the  water  himself  by  virtue  of  the  ownership,  and  only  such 
rights  as  the  municipal  statutes  give  him  to  resist  invasion  to  remove  it. 

The  case  was  really  over  a  conflict  of  rights  of  appropriation,  although  Lux 
pleaded  his  riparian  proprietorship  as  the  basis  of  his  right  of  appropriation. 
The  decision  seems  to  have  turned  on  whether  or  not  "irrigation"  was  a  use 
of  water  for  which  the  riparian  law  was  applicable  as  being  a  reasonable  use 
of  the  water  by  a  riparian  proprietor.  It  does  not  seem  to  have  suggested  itself 
to  the  Haggin  attorneys  to  ask  the  Court  to  define  or  part  the  land  of  which  Lux 
was  riparian  proprietor  from  other  of  his  land  of  which  he  was  merely  proprietor. 
Lux  owned  an  enormous  tract  of  land  extending  back  many  miles  from  the  banks 
of  the  river.  It  was  all  acquired  from  the  public  land  in  subdivisions  of  160 
acres  or  less.  It  would  have  been  interesting  to  have  had  the  Court  make  a  ruling 
as  to  whether  the  riparian  proprietorship  was  of  all  the  contiguous  land  which 
Lux  owned,  even  though  some  of  the  160-acre  parcels  were  twelve  miles  away 
from  the  river  front,  or  only  of  the  160-acre  parcels  which  touched  the  river  banks. 


34 

Water  Appropriation  Law  in  California. 

The  sovereign  property  right  to  appropriate  and  use  the  flow  of 
the  water  of  the  streams  which  the  State  of  California  received  from 
the  United  States  by  the  grant  of  their  Act  of  Admission,  the  State  still 
holds  as  sovereign  property  in  the  precise  identity  in  which  it  was 
received.  The  State  permits  proprietary  use  of  its  sovereign  property 
on  conditions  prescribed  by  provisions  of  its  municipal  statutes.  "Use 
of  the  flow  of  the  water"  is  made  of  the  essence  of  the  issuance  of  its 
franchise  or  permit  to  appropriate  the  flow  of  the  water. 

United  States  Proprietor  of  Water  Appropriations  in  California. 

The  United  States  in  subordination  to  the  jurisdiction  of  the  State 
has  the  same  right  (if  or  where  such  right  is  within  its  constitutional 
powers)  to  possess  and  enjoy  the  permit  or  franchise  of  the  State  to 
m-ake  proprietary  use  of  the  State's  property  right  to  appropriate  and 
use  the  flow  of  water  of  streams  as  any  person  duly  qualified  by  the 
State,  but,  the  proprietary  use  of  the  State  property  by  the  United 
States  is,  in  law,  subject  to  the  same  municipal  obligations  as  pro- 
prietary use  by  a  person.  In  fact,  this  has  not  been  the  case.  The 
payment  of  taxes  on  an  assessment  of  the  value  of  the  franchise  or 
permit  of  the  State  to  appropriate  and  use  the  flow  of  water  of  a 
stream  is  a  municipal  obligation  of  a  person  possessing  the  franchise, 
but  the  United  States  holder  of  the  franchise  in  place  of  a  person, 
(since  the  municipal  law  of  California  does  not  recognize  the  United 
States  in  any  proprietary  capacity  except  as  proprietor  ©f  the  public 
land),  has  not  been  taxed  on  an  assessment  of  any  one  of  several  State 
franchises  to  appropriate  and  use  the  flow  of  the  water  of  a  stream 
which  it  has  acquired  by  mesne  conveyances  from  persons  to  whom 
the  original  franchises  issued. 

United  States  Land  Proprietor  in  California. 

The  United  States  has  also  become  by  mesne  conveyances  the 
proprietor  of  land  in  California  which  is  neither  public  land  nor  land 
brought  under  its  sovereignty  by  cession  of  the  sovereignty  of  the 
State.*  It  has  become  the  proprietor  of  water  works  by  original  con- 
struction and  by  purchase  from  persons  who  constructed  them.  It  has 
acquired  mortgage  interests  in  proprietary  land.    All  of  these  kinds  of 

.  *  Van  Brocklen  v.  Anderson,  117  U.  S.  115.  'The  United  States  at  the  dis- 
cretion of  Congress,  may  acquire  real  estate  in  any  State  when  needed  for  the 
use  of  the   Government   in  the   execution  of  any  of  its   powers." 


35 

property  in  the  possession  of  persons  are  subject  to  municipal  assess- 
ment and  municipal  taxes  are  paid  by  them.  The  same  properties 
owned  by  the  United  States  as  proprietor  have  not  been  assessed  or 
taxed  although  they  are  not  exempted  from  municipal  taxation  by  any 
covenant  of  the  Act  of  Admission  of  California  or  by  virtue  of  any 
provision  of  the  Constitution  of  the  United  States.* 

Rights  of  Way  for  Water  Works  Emplacement  Acquired  for  Public 
Use  by  Condemnation. 

The  holder  of  the  permit  or  franchise  of  California  to  appropriate 
the  flow  of  the  water  of  a  stream  for  a  public  use  or  service,  as  dis- 
tinguished from  a  private  use  or  service,  may,  under  the  municipal  law 
of  the  State,  invade  by  condemnation  any  land  proprietorship  (except 
the  public  land)  whatever  necessary  to  obtain  from  it  an  easement  of 
a  necessary  situs  (right  of  way)  for  the  emplacement  of  water  works 

*  Assuming  that  some  fiction  of  the  law  will  be  found  or  invented  to  sustain 
in  law  the  continuance  of  the  exemption  from  municipal  taxation  by  California 
of  these  properties  owned  by  the  United  States  as  proprietor,  it  may  be  assumed 
that  the  same  legal  fiction  will  be  employed  to  exempt  from  taxation  the  fran- 
chises or  permits  of  the  State  to  appropriate  and  use  the  water  flow  of  streams, 
and  to  exempt  from  taxation  the  water-works  of  diversion  and  use,  where  the 
use  is  the  development  of  water  power  and  its  electrical  transmission,  and  where 
a  "transfer  to  the  United  States  of  the  necessary  water  rights  [State  franchises]" 
has  been  made  by  the  holder  thereof  as  partial  consideration  paid  to  the  United 
States  for  its  permit  to  make  temporary  emplacement  of  more  or  less  water- 
works construction  on  public  land  reserved  from  disposal  for  the  purpose.  [The 
"transfer  to  the  United  States  of  the  necessary  water  rights"  is  a  suggestion 
of   the    Report   of   Secretary    Ballinger   to    the    President.] 

Disguise  the  economic  result  by  any  description  of  legal  or  other  fiction  that 
may  suggest  itself,  there  can  be  no  avoidance  of  the  fact,  namely,  that  the  result 
of  sustaining  by  legal  fiction  the  exemption  from  municipal  taxation  of  the  pres- 
ent proprietary  estates,  (other  than  the  public  land)  of  the  United  States  in  Cali- 
fornia, will  be  to  exempt  from  municipal  taxation  by  California  all  of  its 
franchises  or  permits  for  proprietary  use  of  its  sovereign  property  right  of  appro- 
priation and  use  of  the  flow  of  water  of  streams,  together  with  the  water  power 
and  electric  power  works  erected  for  over  3,000,000  horsepower  of  water  power 
development  which  will  ultimately  be  effected  in  part  by  emplacement  of  the 
works  construction  on  the  public  land  reserved  for  the  purpose  of  permitting 
such  emplacement. 

Neither  can  there  be  avoidance  of  the  fact,  that  by  ways  of  commercial  indi- 
rection, and  in  the  disguise  of  moderate  charges  or  fees  assessed  on  capital  in- 
vestment or  income,  the  United  States  will  be  imposing  and  collecting  municipal 
taxes  in  the  State  of  California,  thereby  ousting  the  sovereignty  of  California  and 
re-establishing  their  own  as  it  existed  before  their  Act  of  Admission. 


36 

construction.  No  right  of  action  is  necessary  for  the  invasion  of  the 
United  States  proprietorship  of  the  public  land  to  obtain  from  it  an 
easement  of  a  necessary  situs  (right  of  way)  for  the  emplacement  of 
water  works  construction.  First,  because  there  is  no  material  loss  of 
value  of  the  public  land  from  which  the  easements  of  right  of  way 
are  subtracted  by  invasion  owing  to  the  conditions  of  disposal  of  the 
public  land  which  the  United  States  has  elected.  The  disposition  price 
of  the  parcels  of  public  land  from  which  easements  of  any  kind  have 
been  subtracted  has  never  been  reduced  by  the  United  States.  The 
statutes  providing  for  disposal  have  uniformly  provided  that  without 
deduction  of  price  by  reason  of  easements  appropriated  by  invasion, 
or  expressly  granted  by  Congress,  the  parcels  shall  be  disposed  of 
subject  to  the  servitude  of  any  existing  easements.  Second,  the  United 
States  has  the  proprietary  right,  just  as  have  other  land  proprietors,  to 
enjoin  an  invasion  appropriating  easements  the  subtraction  of  which 
causes  loss  or  damage  to  the  public  land,  and  to  have  ascertained  and 
paid  to  it  compensation  for  the  loss  or  damage.  Third,  the  Supreme 
Court  in  an  opinion  by  Justice  McLean  in  1853  (^)  settled  the  legal 
principle  establishing  the  right  of  lawful  invasion  of  the  public  land 
and  appropriation  therefrom  of  easements  of  right  of  way  for  public 
use,  without  action  at  law  or  the  permit  of  a  ministerial  officer  of  the 
Federal  Government. 

U.  S.  Statutes  Granting  Rights  of  Way  for  Water  Works  Emplace- 
ment on  Public  Land. 

The  United  States  statutes  broaden  the  right  of  the  holder  of  the 
State's  franchise  or  permit  of  appropriation  and  use  of  the  flow  of 
stream  water  to  enter  the  public  land  and  appropriate  therefrom  ease- 
ments (rights  of  way)  for  emplacement  of  waterworks.  ^Section  9 
of  the  Act  of  Congress  of  July  26,  1866,  provides  that  the  entry  on  the 
public  land  and  the  appropriation  therefrom  of  easements  (rights  of^ 
way)  for  the  emplacement  of  water  works,  and  for  the  flow  of  water 
through  them,  may  be  made  without  reference  to  whether  or  not  the 
use  contemplated  or  made  of  the  flow  of  the  water  of  the  stream  was 
a  private  use  or  a  public  use.    The  importance  of  this  enactment  arises 

"^(Rcv.  Stat.  2339.  Sec.  9  of  Act  of  Congress,  July  26,  1866.)  'That  wherever 
by  priority  of  possession,  rights  to  the  use  of  water  for  mining,  agricultural,  manu- 
facturing, or  other  purposes  have  vested  and  accrued,  and  the  same  are  recog- 
nized and  acknowledged  by  the  local  customs,  laws,  and  the  decisions  of  courts, 
the  possessors  and  owners  of  such  vested  rights  shall  be  maintained  and  pro- 
tected in  the  same ;  and  the  right  of  way  for  the  construction  of  ditches  and 
canals,  for  the  purposes  aforesaid,  is  hereby  acknowledged  and  confirmed." 


37 

from  the  fact  that  without  its  grant  the  appropriators  of  water  works 
easements  for  private  use,  unhke  appropriators  for  a  pubHc  use,  were 
mere  trespassers  on  the  public  land  who  could  be  evicted  whenever 
the  Federal  Government  elected,  the  trespass  not  being  capable  of 
vesting  a  right  by  prescription  to  any  estate  in  the  public  land. 

That  Congress  intended  it  as  an  Act  granting  a  property  right  in 
easements  which  would  thereafter  be  appropriated  as  well  as  a  con- 
firmation of  appropriation  or  grant  of  right  to  appropriations  which 
were  then  existing,  seems  very  clear  from  the  *Act  of  Congress  of 
July  9,  1870,  which  provided  that  all  public  land  grants  of  the  United 
States  should  be  subject  to  all  easements  granted  by  the  Act  of 
July  26,  1866. 

It  has  been  suggested  that  the  Act  of  July  26,  1866,  provided  for 
the  granting  by  the  United  vStates  of  rights  to  appropriate  and  use  the 
flow  of  stream  water.  This,  however,  was  not  its  purpose.  It  was 
intended  to  define  the  doubtful  status  of  possession  of  easements  of 
water  works  emplacement  on  the  public  land.  These  easements  were 
appropriated  for  private  use  in  connection  with  mining  almost  without 
exception.  The  development  of  hydraulic  mining  on  an  enormous 
scale,  and  the  increasing  use  of  large  developments  of  water  power  in 
quartz  mining,  were  requiring  the  investment  of  great  sums  of  money 
in  extended  water  works  construction.  The  use  of  the  appropriated 
easements  was  unquestionably  private  and  the  entry  made  on  the 
public  land  was  undoubtedly  a  trespass.  Speculators  were  acquiring 
land  from  the  Federal  Government  which  included  these  easements 
?.nd  railroad  land  grants  were  being  made  wholesale  over  them.  Titles 
to  the  right  to  appropriate  water  were  secure  but  titles  to  the  ease- 
ments on  the  public  land  were  becoming  more  and  more  indeterminate 
and  large  investments  of  capital  not  only  in  water  works  construction, 
but  in  mines  dependent  on  the  easements,  were  being  jeopardized. 
The  Act  of  Congress  confirming  a  title  by  grant  to  appropriations  of 
easements  already  made  and  vesting  a  grant  of  the  easements  as  others 
were  from  time  to  time  appropriated  settled  the  vital  matter  of  titles 
to  the  easements  of  water  works  emplacement  on  the  public  land. 
That  was  the  reason  for  the  law. 

That  the  Act  is  unmistakable  as  an  Act  providing  for  the  granting 
of  rights  of  way  (easements)  appears  clearly  when  the  first  clause  ot 

*(Rev.  Stat.  2340.  Act  of  Congress,  July  g,  1870.)  "All  patents  granted  or 
pre-emptions  or  homesteads  allowed  shall  be  subject  to  any  vested  and  accrued 
water  rights,  or  rights  to  ditches  and  reservoirs  used  in  connection  with  such  water 
rights  as  may  have  been  acquired  under  or  recognized  by  the  preceding  section." 


88 

the  Act  is  read  as  the  definition  or  denomination  by  Congress  of  the 
condition  precedent  from  which  the  grant  of  rights  of  way  by  the 
United  States  would  be  initiated.  In  declaring  a  condition  precedent 
to  the  grant  of  rights  of  wa}^  Congress  was  not  creating  a  legal  status 
for  water  appropriations  within  its  own  jurisdiction,  but  was  recog- 
nizing the  fact  of  water  appropriations  outside  of  its  judisdiction. 

The  subsequent  Act  of  July  9,  1870,  is  consistent  with  the  first 
Act  with  this  interpretation  applied.  It  was  enacted  to  protect  the 
title  of  possessors  of  rights  of  way  under  the  original  Act  from  attack 
by  grantees  of  the  United  States  on  the  ground  that  the  grant  of  rights 
of  way  made  by  that  Act  was  only  of  those  which  were  appropriated 
or  possessed  when  the  Act  was  passed.  Since  its  enactment  all  land 
patents  of  the  United  States  have  reserved  from  the  grant  of  the  patent 
to  their  possessors  all  rights  of  way  of  water  works,  ditches,  canals, 
and  reservoirs,  regardless  of  whether  the  use  of  the  water  through 
them  was  a  private  use  or  a  public  use. 

The  uncertainty  of  interpretation  which  is  evident  in  reports  of 
adjudicated  cases  under  the  two  Acts,  and  particularly  the  first,  has 
very  likely  been  due  to  the  unconscious  impress  on  the  Courts  of  the 
popular  misinformation  or  misunderstanding  regarding  mining  rights 
and  water  appropriation  rights  which  has  existed  in  California  from 
the  early  days  of  gold  mining  almost  down  to  the  present  time.* 
Both  the  mining  customs  which  have  since  become  the  Mining  Law 
of  the  United  States,  and  the  water  appropriation  customs  which  have 
since  become  the  Water  Appropriation  Law  of  California  had  their 
source  in  the  mining  and  water  laws  of  Mexico.  Both  the  mines  and 
the  flow  of  water  were  government  property  in  Mexico  and  both  were 
appropriated  by  private  persons  in  much  the  same  way.  There  was  a 
form  of  declaratory  notice  of  intention  to  make  the  appropriation 
required  by  Mexican  law  for  mines  and  another  for  water.  The  gold- 
seekers  from  the  States  absorbed  this  much  from  the  native  Mexican 
population  of  California  who  became  gold-seekers  with  them  and  were 
their  first  instructors  in  the  practice  of  gold  mining.  It  soon  became 
customary  among  the  miners  to  use  a  single  form  with  which  to  make 
both  appropriations  or  claims  because  the  gold  mining  and  use  of 
water  went  together.  It  is  interesting  to  find  a  number  of  early  day 
miners  still  in  the  business  following  this  old  custom  of  claiming  water 

*  Howell  V.  Johnson,  89  Fed.  Rep.,  556.  "This  section  (Rev.  Stat.  2339)  recog- 
nizes the  right  of  the  prior  appropriator  of  water  upon  the  public  domain,  even  as 
against  the  United  States  and  its  grantees,  if  such  appropriation  was  authorized  by 
the  statute  of  the  State  where  the  appropriation  was  made." 


39 

rights  for  mining  along  with  the  mining  claim  in  the  same  written 
notice  of  location  of  mining  claim.  The  early  day  miners  did  not  draw 
fine  distinctions,  and  assumed  without  inquiry,  since  the  Government 
of  Mexico,  which  formerly  owned  California,  owned  both  mines  and 
water,  that  the  United  States  must  likewise  own  both.  Such  a  general 
acceptance  of  the  assumption  and  its  recognition  in  customs  which 
were  not  questioned  as  being  law  good  enough  for  the  miners,  'could 
hardly  fail  of  unconsciously  affecting  the  viewpoint  of  Courts  who 
along  with  litigants  were  miners  and  like  them  accepted  the  customs 
of  mining  without  question.* 

Congress  Changes  Condition  Precedent  for  Its  Grant  of  Rights  of 
Way. 

The  Act  of  Congress  of  March  3,  1891,  was  passed  with  the  inten- 
tion of  serving  a  special  purpose.  Irrigation  of  the  so-called  arid 
lands  in  the  Rocky  Mountain  States  was  beginning  to  attract  com- 
mercial attention  and  invite  the  investment  of  capital  from  outside  of 
the  States.  While  there  was  no  question  over  the  vesting  of  title  to 
rights  of  way  on  public  land  after  the  completion  of  the  water  works 
construction,  the  same  certainty  did  not  exist  as  to  the  title  to  such 
rights  of  way  during  the  period,  which  might  be  several  years,  of 
complete  construction  of  irrigation  water  works  in  which  large  sums 
of  capital  would  be  risked.**  The  Act***  with  the  purpose  of  assisting 

*Jennison  v.  Kirk,  g8  U.  S.,  453.  "It  will  thus  be  seen  that  the  Federal  Stat- 
utes merely  gave  a  formal  sanction  to  the  rules  already  established.  These  rules 
had  been  built  up  in  reliance  on  the  tacit  acquiescence  of  the  United  States,  the 
true  owner  of  the  lands  and  waters  on  which  appropriations  were  made,  and  these 
statutes  acquiesced  therein  expressly,  *a  voluntary  recognition  of  a  pre-existing 
right   rather  than  the  establishment  of  a  new  one.' " 

**Bear  Lake  Irr.  Co.  v.  Garland,  154  U.  S.,  ig.  "No  title,  legal  or  equitable, 
is  acquired  to  a  right  of  way  across  the  public  lands  for  ditches  and  canals  until 
the  completion  of  the  work." 

***Act  of  Congress,  Mar.  3,  189 1.  Sec.  18.  "That  the  right  of  way  through  the 
public  lands  and  reservations  of  the  United  States  is  hereby  granted  to  any  canal 
or  ditch  company  formed  for  the  purpose  of  irrigation,  and  duly  organized  under 
the  laws  of  any  State  or  Territory,  which  shall  file  with  the  Secretary  of  the  In- 
terior a  copy  of  its  articles  of  incorporation  and  due  proofs  of  its  organization 
under  the  same  to  the  extent  of  the  ground  occupied  by  the  water  of  the  reservoir 
and  the  canal  and  its  laterals,  and  fifty  feet  on  each  side  of  the  marginal  limits 
thereof;  *  *  *  Provided.  That  no  such  right  of  way  shall  be  so  located  as  to 
interfere  with  the  proper  occupation  by  the  Government  of  any  reservation,  and 
the  privilege  herein  granted  shall  not  be  construed  to  interfere  with  the  control 
of  water  for  irrigration  and  other  purposes  under  the  authority  of  the  respective 
States  and  Territories. 

"Sec.  19.  That  any  canal  or  ditch  company  desiring  to  secure  the  benefits  of 
this  act  shall,  within  twelve  months  after  the  location  of  its  canal,  if  the  same  be 


40 

enterprise  in  irrigation  created  a  new  condition  precedent  for  the  grant 
of  rights  of  way  by  the  United  States  where  either  private  or  public 
irrigation  use  was  made  or  to  be  made  of  the  water. 

The  new  condition  precedent  was  the  filing  with,  and  approval  by, 
the  Secretary  of  the  Interior,  of  certain  maps  and  certificates,  on  which 
approval  the  grant  of  the  rights  of  way  would  vest  forthwith.  To  give 
such  grants  a  legal  entity  their  definition  by  the  field  notes  of  a  survey 
connecting  them  with  the  survey  of  the  public  land  was  indispensable, 
hence  the  provision  in  the  Act  providing  for  the  making  and  filing  of 
a  map  of  the  right  of  way.  The  provision  for  a  forfeiture  in  the  event 
of  failure  to  use  the  right  of  way  within  five  years  is  incomplete  since 
no  legal  procedure  is  prescribed  for  establishing  the  fact  of  failure  to 
use  the  right  of  way  within  the  time  prescribed.  Following  the  rule 
laid  down  by  the  Courts  it  would  seem  that  instead  of  ''forfeiture" 
the  act  should  have  provided  for  a  "reversion"  of  the  grant. 

By  way  of  giving  additional  assistance  to  irrigation  enterprise  the 
Act  prescribed  conditions  under  which  the  United  States  would  grant 
rights  of  way  within  its  Government  land  reservations  (lands  which 
the  United  States  owned  as  sovereign  and  over  which  it  had  sovereign 
jurisdiction)  as  well  as  on  the  proprietary  public  land.  Indian  reserva- 
tions in  the  States  and  Territories  of  the  Rocky  Mountain  region 
were  particularly  in  view  in  the  making  of  this  provision. 

While  the  special  purpose  of  the  Act  was  as  has  been  described, 
its  form  was  general.  Advantage  was  taken  of  this  in  California  and 
other  States  to  secure  titles  to  rights  of  way  for  water  works  without 
first  building  the  works  or  even  securing  any  water.  All  that  was 
necessary  was  to  conform  to  the  requirement  of  the  Act  by  precedently 
declaring  that  the  use  of  the  water  was  to  be  irrigation. 

The  Act  of  Congress  of  January  21,  1895,  extended  the  operation 
of  the  new  condition  precedent,  (the  condition  precedent  created  by 

upon  surveyed  lands,  and  if  upon  unsurveyed  lands  within  twelve  months  after 
the  survey  thereof,  by  the  United  States,  file  with  the  register  of  the  land  office 
for  the  district  where  such  land  is  located  a  map  of  its  canal  or  ditch  and  res- 
ervoir; and  upon  approval  thereof  by  the  Secretary  of  the  Interior  the  same 
shall  be  noted  upon  the  plats  in  said  office,  and  thereafter  all  such  lands  shall  be 
disposed  of  subject  to  such  right  of  way.     *    *     * 

'Sec.  20.  That  the  provisions  of  this  act  shall  apply  to  all  canals,  ditches,  or 
reservoirs  heretofore  or  hereafter  constructed,  whether  constructed  by  corpora- 
tionsj  individuals  or  associations  of  individuals,  on  the  filing  of  the  certificates 
and  maps  herein  provided  for.  *  *  *  Provided,  That  if  any  section  of  said 
canal  or  ditch  shall  not  be  completed  within  five  years  after  the  location  of  said 
section  the  rights  herein  granted  shall  be  forfeited  as  to  any  uncompleted  section 
of  said  canal,  ditch,  or  reservoir,  to  the  extent  that  the  same  is  not  completed  at 
the   date   of   the   forfeiture." 


41 

the  Act  of  March  3,  1891),  to  vest  the  grant  of  rights  of  way  for  water 
works  where  the  use  of  water  was,  or  was  to  be,  for  private  mining, 
quarrying,  or  cutting  and  manufacturing  lumber,  but  provided  only 
for  grants  of  rights  of  way  from  the  public  land,  irrigation  being  the 
only  consideration  which  the  United  States  would  accept  for  its  grant 
of  rights  of  way  within  its  sovereign  land.* 

The  Act  of  Congress  of  February  26,  1897,  provides  that  any  of 
the  respective  States  could  be  granted  rights  of  way  for  reservoirs  for 
the  storage  of  water  for  irrigation,  under  the  Act  of  March  3,  1891,  to 
the  same  extent  as  individuals  or  corporations.**  The  particular 
significance  of  the  Act  is  in  the  last  clause,  which,  in  effect,  disclaims 
for  the  United  States  in  favor  of  the  States,  any  claim  of  right  to 
regulate  or  control  the  charges  for  water  by  virtue  of  its  proprietary 
ownership  of  the  land  of  the  reservoirs.  It  is  a  repetition  of  the 
disclaimer  to  the  same  effect  in  Section  18  of  the  Act  of  March  3,  1891, 
that,  the  acceptance  of  a  right  of  way  for  water  works  granted  by  the 
United  States  on  either  its  proprietary  public  land  or  sovereign  land 
in  its  Government  reservations,  should  not  be  construed  by  the  United 
States  as  investing  them  with  the  right  to  interfere  with  the  control 
of  the  water  under  the  authority  (jurisdiction)  of  the  respective  States 
or  Territories. 

The  Act  of  Congress  of  May  11,  1898,  simply  amends  the  Act  of 
January  21,  1895,  by  extending  the  operation  of  the  new  condition 
precedent  to  vest  the  grant  of  rights  of  way  for  water  works  where 
the  use  of  water  effected  through  or  by  them  was  domestic  purposes, 
development  of  water  power,  public,  and  other  beneficial  uses,  as  well 

*  Act  of  Congress,  Jan.  21,  1805  (28  Stat.,  6:^5).  "That  the  Secretary  of  the 
Interior  be,  and  hereby  is,  authorized  and  empowered,  under  the  general  regula- 
tions to  be  fixed  by  him.  to  permit  the  use  of  the  right  of  way  through  the  public 
land  of  the  United  States,  not  within  the  limits  of  any  park,  forest,  military,  or  Indian 
reservation,  for  tramroads,  canals  or  reservoirs  and  fifty  feet  on  each  side  of 
the  marginal  limits  thereof,  or  fifty  feet  on  each  side  of  the  center  line  of  the 
tramroad,  by  any  citizen  or  any  association  of  citizens  of  the  United  States  engaged 
in  the  business  of  mining  or  quarrying  or  of  cutting  lumber  and  manufacturing 
lumber. 

**  Act  of  Congress,  Feb.  26,  1897,  (29  Stat.,  599).  "That  all  reservoir  sites 
reserved  or  to  be  reserved  shall  be  open  to  use  and  occupation  under  the  right- 
of-way  act  of  March  3,  1891.  And  any  State  is  hereby  authorized  to  improve  and 
occupy  such  reservoir  sites  to  the  same  extent  as  an  individual  or  private  corpora- 
tion, under  such  rules  and  regulations  as  the  Secretary  of  the  Interior  may  pre- 
scribe:  Provided,  That  the  charges  for  water  coming  in  whole  or  part  from  res- 
ervoir sites  used  or  occupied  under  the  provisions  of  this  act  shall  always  be  sub- 
ject to  the  control  and  regulation  of  the  respective  States  and  Territories  in  which 
such  reservoirs  are  in  whole  or  part   situate." 


42 

as  irrigation,  mining,  quarrying,  and  cutting  and  manufacturing  of 
lumber.* 

Repeal  of  U.  S.  Statutes  Granting  Rights  of  Way  for  Water  Works. 

The  Act  of  Congress  of  February  15,  1901,  repealed  the  Acts  of 
July  26,  1866,  March  3,  1891,  January  21,  1895,  February  26,  1897,  and 
May  II,  1898.  The  Act  of  July  9,  1870,  was  not  repealed.  Congress 
may  not  have  intended  this  effect  to  its  Act  but  the  effect  is  a  fact 
nevertheless. 

The  repealed  Acts  were  Acts  making  grants  in  presenti  on  one, 
•later  another,  condition  precedent,  of  easements  of  rights  of  way  for 
the  emplacement  of  water  works  on  the  public  lands  where  the 
grantees'  use  of  the  easements  was  a  private  use,  and  one  of  them,  the 
Act  of  March  3,  1891,  making  grants  of  easements  of  rights  of  way  on 
land  of  the  sovereign  jurisdiction  of  the  United  States  where  the 
grantees'  use  of  the  easements  in  accomplishing  irrigation  might  be 
either  a  private  use  or  a  public  use. 

Act  of  Congress  Providing  for  Tenancies  of  Public  Lands  for  Rights 
of  Way. 

The  Act  of  February  15,  1901,  in  place  of  the  grants  in  presenti 
miade  by  the  Acts  repealed,  specified  the  covenants  of  a  permitted 
tenancy  on  the  public  land  and  on  certain  of  the  lands  in  the  sovereign 
jurisdiction  of  the  United  States.**    The  phrase,  "permit  the  use  of 

-  *  Act  of  Congress,  May  11,  1898,  (30  Stat.,  404).  Sec.  i.  "That  the  Secretary 
of  the  Interior  be,  and  hereby  is,  authorized  and  empowered,  under  general  regu- 
la,tions  to  be  fixed  by  him,  to  permit  the  use  of  right  of  way  upon  the  public  lands 
of  the  United  States,  not  within  the  limits  of  any  park,  forest,  military  or  Indian 
r€;servations,  for  tramways,  canals  or  reservoirs  to  the  extent  of  the  ground  occupied 
by  the  water  of  the  Canals  and  reservoirs  and  fifty  feet  on  each  side  of  the 
marginal  limits  thereof,  or  fifty  feet  on  each  side  of  the  center  of  the  tram- 
road,  to  any  citizen  or  association  of  citizens  of  the  United  States  for  the  pur- 
po^se' of  furnishing  water  for  domestic,  public,  and  other  beneficial  uses. 

Sec.  2.  That  rights  of  way  for  ditches,  canals,  or  reservoirs  heretofore  ap- 
proved under  the  provisions  of  Sections  18,  19,  20,  and  21,  of  the  Act  of  March  3, 
1891,  may  be  used  for  purposes  of  water  transportation,  for  domestic  purposes,  or 
fox  -the  development  of  power,  as  subsidiary  to  the  main  purpose  of  irrigation." 

**^rf  of  Congress,  Feb.  15,  igoi.  31  Stat,  at  Large,  p.  ygo.  "That  the  Sec- 
retary of  the  Interior  be,  and  hereby  is,  authorized  and  empowered,  under  gen- 
eral regulations  to  be  fixed  by  him,  to  permit  the  use  of  rights  of  way  through  the 
public  lands,  forest  and  other  reservations  of  the  United  States,  and  the  Yosemite, 
Sequoia  and  General  Grant  national  parks,  California,  for  electrical  plants,  poles, 
arid  lines  for  the  generation  and  distribution  of  electrical  power,  and  for  telephone 
and  telegraph  purposes,  and  for  canals,  ditches,  pipes  and  pipe  lines,  flumes,  tun- 
nels,  or   other   water   conduits,   and   for   water   plants,   dams,   and    reservoirs   used 


43 

rights  of  way"  in  the  first  clause  of  the  Act,  qualified  by  the  proviso 
of  the  last  clause  of  the  Act,  that  any  permit  may  be  revoked  *'and 
shall  not  be  held  to  confer  any  [grant  of]  easement,  or  interest  in,  to, 
or  over  any  public  land,  reservation,  or  park,"  despite  its  disguise, 
describes  a  relation  of  landlord  and  tenant  between  the  United  States 
proprietary  owner  of  the  public  land,  and  **any  citizen,  association,  or 
corporation  of  the  United  States"  holder  of  the  permit  "to  use  rights 
of  way." 

The  landlord,  United  States,  covenants  to  deliver  the  temporary 
possession  of  parcels  of  the  public  land  (or  of  land  under  the  sovereign 
jurisdiction)  to  the  tenant,  (citizen,  association  or  corporation). 

The  tenant  (citizen,  association  or  corporation)  covenants  to 
vacate  and  surrender  the  demised  premises  at  will  of  the  landlord 
(revocation  of  permit  or  lease  by  the  Secretary  of  the  Interior  who  the 
Act  makes  the  real  estate  agent  of  the  landlord  United  States). 

The  tenant  (citizen,  association  or  corporation)  covenants  as 
consideration  for  the  possession  of  the  land  temporarily,  to  emplace 
thereon  waterworks  construction  adapted  to  conduct  water,  (canals, 
ditches,  flumes,  tunnels,  reservoirs,  water  [power]  plants,  dams,  pipes, 
pipe  lines,  and  other  water  conduits),  and  to  use  the  water  works 
construction  for  the  conduit  of  water  for  some  one  or  more  of  purposes 
which  are  named  in  the  Act  as,  irrigation,  mining,  quarrying,  manu- 
facturing or  cutting  of  timber  or  lumber,  domestic,  public,  or  any  other 
beneficial  use,  the  last  embracing  the  use  of  the  water  in  power 
development,  and  may  additionally  covenant  to  emplace  thereon  elec- 
trical plants,  poles  and  [wire]  lines  for  the  generation  and  distribution 
of  electrical  power,  and  poles  and  [wire]  lines  for  telephone  and 
telegraph  purposes. 

to  promote  irrigation  or  mining  or  quarrying,  or  the  manufacturing  or  cutting 
of  timber  or  lumber,  or  the  supplying  of  water  for  domestic,  public,  or  any  other 
beneficial  uses  to  the  extent  of  the  ground  occupied  by  such  canals,  ditches,  flumes, 
tunnels,  reservoirs,  or  other  water  conduits  or  water  plants,  or  electrical  or  other 
works  permitted  hereunder,  and  not  to  exceed  50  feet  on  each  side  of  the  mar- 
ginal limits  thereof,  or  not  to  exceed  50  feet  on  each  side  of  the  center  line  of  such 
pipe  lines,  electrical,  telegraph,  and  telephone  lines  and  poles,  by  any  citizen,  asso- 
ciation, or  corporation  of  the  United  States,  where  it  is  intended  by  such  to  ex- 
ercise the  use  permitted  hereunder  or  any  one  or  more  of  the  purposes  herein 
named:  Provided,  That  such  permits  shall  be  allowed  within  or  through  any  of 
said  parks  or  any  forest,  military,  Indian,  or  other  reservation  only  upon  the 
approval  of  the  chief  officer  of  the  department  under  whose  supervision  such 
park  or  reservation  falls,  and  upon  a  finding  by  him  that  the  same  is  not  incom- 
patible with  the  public  interest;  *  *  *  And  provided  further.  That  any  per- 
mission given  by  the  Secretary  of  the  Interior  under  the  provisions  of  this  Act 
may  be  revoked  by  him  or  his  successor  in  his  discretion,  and  shall  not  be  held 
to  confer  any  right,  or  easement,  or  interest  in,  to,  or  over  any  public  land,  res- 
ervation, or  park." 


There  is  no  covenant  in  the  Act  prescribing  a  money  payment  of 
rental  for  the  land,  either  public  land  or  sovereign  land,  occupied  in 
tenancy,  and  there  is  no  suggestion  or  implication  that  the  authority  of 
the  Secretary  is  anything  more  than  ministerial  in  any  matter  con- 
nected with  his  executing  the  leases  of  the  public  and  other  land  for 
the  purposes  mentioned.  The  Act,  however,  does  however  purport  to 
give  the  Secretary  of  the  Interior  unlimited  discretion  to  terminate 
a  tenancy. 

So  far  as  the  Act  relates  to  the  disposition  of  land  within  the 
sovereign  jurisdiction  of  the  United  States,  the  disposition  of  the  land 
of  the  reservations  created  for  purposes  of  the  Federal  Government, 
in  distinction  from  reservations  from  present  disposal  of  public  land, 
the  Act  is  the  paramount  law.  The  United  States  by  Act  of  Congress 
may  make  the  conditions  of  disposition  of  land  within  the  jurisdiction 
of  the  Federal  Government  anything  Congress  pleases.  Such  land  is 
tiot  within  the  municipal  jurisdiction  of  the  State  for  any  purpose. 

So  far  as  the  Act  relates  to  the  disposition  of  the  proprietary 
public  land  of  the  United  States  the  Act  is  not  the. paramount  law. 
The  Act  does  not  make  a  primary  disposal  of  the  public  land,  with 
which  the  State  of  California  by  the  covenant  of  the  Act  of  Admission 
cannot  interfere  in  any  way.  The  Act  does  not  make  any  kind  of  a 
disposal  of  the  public  land.  If  the  tenancy  permitted  by  the  Act  be 
assumed  to  be  "primary  disposal"  the  land  tenanted  would  become 
taxable  by  the  State  forthwith — an  obviously  impossible  condition. 
Therefore,  the  United  States  landlord  of  the  public  land  and  the 
permitted  tenant  of  the  public  land  are  both  within  the  municipal 
jurisdiction  of  the  State  of  California,  and  the  covenants  of  any 
contract  of  tenancy  entered  into  by  or  under  this  Act  of  Congress,  are 
subject  to  limitations  imposed  by  the  municipal  law  of  California  and 
the  interpretations  the  vState  Courts  put  on  them. 

The  United  States  landlord-proprietor  of  the  public  land  may,  or 
may  not,  permit  tenancy  of  the  public  land  for  private  purposes  and 
uses  as  it  elects.  That  is  its  landlord  affair  entirely.  The  Act  of 
February  15,  1901,  permits  tenancy  of  the  public  land  for  certain 
specified  private  purposes  and  uses.  The  Act  also  permits  tenancy  of 
the  public  land  for  certain  specified  public  purposes  and  uses.  But,  the 
Act  does  not,  because  it  cannot,  limit  the  occupancy  of  the  public  land 
for  the  certain  purposes  of  public  use  to  an  occupancy  as  a  tenant. 
The  Act  may  possibly  widen,  within  the  State  jurisdiction  of  election,, 
the  choice  of  the  kind  of  occupancy  of  the  public  land  for  the  certain 
public  purposes  and  uses.     The  State,  however,  has  the  paramount 


45 

right  of  occupancy   for  public   purposes  and   uses  by  virtue  of  its 
eminent  domain. 

It  is  doubtful  if  the  State  of  California,  or  any  other  State  (no 
matter  by  whom  the  State  jurisdiction  may  be  exercised),  for  a  public 
purpose  or  use,  can  constitutionally  elect  as  against  the  exercise  of  its 
eminent  domain  the  contractual  acceptance  of  a  terminable  tenancy 
even  if  it  be  politely  called  a  "revokable  permit."  Obviously,  for 
public  purposes  and  uses  any  private  proprietary  water  appropriation 
inclusive  of  its  water  works  and  their  situs  can  be  condemned  entirely 
irrespective  of  part  of  the  situs  of  the  water  works  being  privately 
possessed  by  virtue  of  a  contract  of  tenancy.  It  would  not  be  the 
terminable  tenancy  of  a  landlord's  land  which  would  be  condemned 
by  eminent  domain,  but  the  estate  in  the  land  itself,  the  fee,  or  a 
sufficient  easement  imposed  on  the  fee,  to  vest  the  unlimited  right  of 
use  of  the  situs  of  the  water  works  for  the  public  purpose. 

Summary    of   Title   and    Current   Law   of    Water    Appropriation   in 
California. 

The  title  and  the  current  law  of  the  flow  of  the  water  in  the 
streams  on,  by,  or  adjacent  to  the  public  land  of  the  United  States  in 
California,  and  in  the  land  in  the  sovereign  jurisdiction  of  the  United 
States  which  is  in  but  not  of  California,  may  be  summarized  sub- 
stantially as  follows : 

The  title  to  the  right  to  appropriate  and  use  the  flow  of  the  water 
of  streams  on,  by,  or  adjacent  to  the  public  land  in  California  is  in  the 
State  of  California,  and  it  is  held  by  the  State  as  its  sovereign  inalien- 
able property,  the  title  of  the  State  passing  to  it  from  the  United 
States  by  grant  in  presenti  of  their  Act  of  Admission  of  the  State  into 
the  Union,  the  United  States  having  received  the  title  from  Mexico 
by  cession  of  the  Treaty  of  Guadalupe  Hidalgo. 

The  title  to  the  right  to  appropriate  and  use  the  flow  of  the  water 
of  streams  which  flow  in  the  land  of  the  United  States  sovereign 
jurisdiction,  within  but  not  of  California,  is  in  the  United  States,  and 
it:  is  held  by  virtue  of  the  sovereignty  as  property  entirely  at  the 
disposal  of  Congress,  the  title  passing  to  the  United  States  directly 
from  Mexico  as  to  streams  on  the  land  of  Military  and  Indian  reserva- 
tions which  did  not  pass  to  California  by  the  Act  of  Admission,  and 
passing  to  the  United  States  indirectly  from  California  as  to  streams 
on  the  land  of  other  reservations  and  parks,  by  its  legislative  acts 
of  cession. 


^  46 

The  State  of  California  permits  any  citizen  to  make  proprietary 
use,  for  either  public  or  private  purposes  and  uses,  of  its  sovereign 
property  to  appropriate  and  use  the  water  of  streams  which  flow  on, 
by,  or  adjacent  to  the  public  land  in  CaHfornia,  prescribing  by  munici- 
pal statutes  the  conditions  precedent  to  the  issuance  of  its  franchise 
or  permit,  and  making  ''use"  of  the  essence  of  the  franchise. 

Congress  has  made  no  enactment  by  virtue  of  which  proprietary 
use  may  be  made  of  the  flow  of  water  of  the  streams  on  land  in  the 
Federal  Government  jurisdiction  in,  but  not  of,  California. 

The  United  States  is  a  riparian  proprietor  of  riparian  public  land 
in  California,  having  acquired  the  riparian  easements  from  the  State 
of  California,  concurrently  with  their  Admission  of  the  State,  by  its 
grant  in  presenti  implied  from  the  enactment  of  the  Common  Law  of 
England  by  the  first  Legislature  of  California. 

The  holder  of  the  State's  franchise  or  permit  to  appropriate  and 
use  for  public  purposes  and  uses,  the  flow  of  water  of  a  stream  in  the 
California  jurisdiction,  is  entitled  to  the  exercise  of  the  State's  eminent 
domain  to  appropriate  from  the  public  land  of  the  United  States 
necessary  riparian  easements  and  easements  to  provide  necessary  situs 
for  the  emplacement  of  the  water  works  and  other  w^orks  of  his  appro- 
priation and  use  of  the  water  flow. 

The  holder  of  the  State's  franchise  or  permit  to  appropriate  and 
use  for  certain  private  purposes  and  uses,  the  flow  of  water  of  a  stream 
in  the  California  jurisdiction,  is  entitled  to  a  tenancy  of  the  public 
land  to  the  extent  necessary  for  the  emplacement  of  the  appropriate 
water  works  through  which  to  effect  his  appropriation  and  use,  under 
the  provisions  of  the  Act  of  Congress  of  February  15,  1901,  prescribing 
covenants  (subject  to  the  municipal  law  as  interpreted  by  the  Courts 
of  California),  by  the  holder  to  quit  tenancy  at  the  will  of  the  Secretary 
of  the  Interior,  and  to  make  stipulated  private  uses  of  the  tenancy 
possession,  but  not  prescribing  a  covenant  of  payment  of  any  money 
rental  whatever. 

The  holder  of  the  State's  franchise  or  permit  to  appropriate  and 
use  for,  either,  public  purposes  and  uses,  or,  certain  private  purposes 
and  uses,  the  flow  of  a  stream  in  the  California  jurisdiction,  is  entitled 
to  a  tenancy  of  the  sovereign  land  of  the  United  States,  if  such  tenancy 
be  first  found  not  to  be  incompatible  with  public  interest,  to  the  extent 
necessary  for  the  emplacement  of  the  appropriate  water  works  through 
which  appropriation  and  use  would  be  made,  under  the  provisions  of 
the  Act  of  Congress  of  February  15,  1901,  prescribing  contractual 
covenants  (subject  to  Federal  law  and  Courts),  by  the  holder  to  quit 


47 

tenancy  at  the  will  of  the  Secretary  of  the  Interior,  and  to  make  the 
stipulated  uses  of  the  tenancy  possession,  but  not  prescribing  a 
covenant  of  payment  of  any  money  rental  whatever. 

Acceptance  of  Incorrect  Assumptions  as  to  Title  and  Current  Law  of 
Water  Appropriation. 

As  a  consequence  of  more  or  less  general  acceptance  of  a  number 
of  incorrect  assumptions  as  to  the  title  and  the  current  law,  the  State 
of  California,  during  the  past  five  years,  has  not  been  in  either  com- 
mercial or  governmental  possession  of  the  State's  property  right  to 
the  use  of  the  flow  of  the  water  of  the  streams. 

The  error  of  the  generally  accepted  meanings  of  riparian  rights 
and  rights  of  appropriation  and  use  of  the  flow  of  the  water  of  streams 
has  been  explained  and  corrected.  This  error  had  no  harmful  effect 
in  California  until  the  Federal  Government  officials,  about  five  years 
ago,  began  what  they  would  probably  describe  as  the  administration 
of  the  Act  of  Congress  of  February  15,  1901,  with  incorrect  assump- 
tions concerning  this  Act,  to  which  they  have  been  persistently  and 
pestiferously  making  additions  of  more  error  as  their  administration 
continued. 

Concerning  this  Act  of  February  15,  1901,  Federal  Government 
officials  undertaking  to  apply  it  in  administration  have  assumed : 


That  this  Act  provides  the  only  mode  by  which  rights  of  way 
could  be  had  on  the  public  lands  of  the  United  States  in  California  for 
the  water  works  emplacement  necessary  for  public  purposes  and  uses 
of  the  flow  of  the  water  of  streams. 

Whereas,  the  current  law  is,  that  the  State  of  California  has  the* 
sovereign  power  of  eminent  domain  over  the  public  land  in  California, 
and  the  emplacement  of  water  works,  intended  to  effect  public  pur- 
poses and  uses  of  the  flow  of  the  water  of  streams,  must  proceed  by 
eminent  domain  of  the  State  and  not  otherwise. 

II. 

That  the  "permit  to  use  rights  of  way  through  the  public  lands" 
which  the  Act  provides  should  be  issued  by  the  Secretary  of  the 
Interior  is  of  the  essential  legal  nature  of  a  Federal  license  of  a 
privilege  on  the  public  land.  , 


48 

Whereas,  the  fact  is,  that  the  "permit"  is  a  landlord's  contract  with 
his  tenant  for  the  lease  of  a  parcel  of  public  land. 

III. 

That  the  Act  did  not  provide  in  its  express  words  all  the  covenants 
which  Congress  intended  the  "permittee"  (really  tenant)  should  be 
obligated  to  in  consideration  of  the  "permission"  (really  lease)  to 
occupy  public  land. 

Whereas,  the  fact  is,  that,  the  Act  being  a  legislative  Act  of 
Congress  providing  the  conditions  or  terms  of  a  disposition  of  public 
property,  an  assumption  that  there  could  be  any  other  conditions  or 
terms  than  those  expressly  declared  in  the  words  of  the  Act,  involves 
the  further  assumption  that  Congress  could  delegate  its  legislative 
function  in  the  Government  of  the  United  States  by  the  Act  to  an 
executive  officer,  which  would  be  impossible  because  unconstitutional. 

IV. 

That  the  Secretary  of  the  Interior,  by  virtue  of  the  clause,  "author- 
ized and  empowered  under  general  regulations  to  be  fixed  by  him,"  in 
the  Act,  became  thereby  invested  with  the  power  to  prescribe  the 
covenants  which  the  "permittee"  (tenant)  must  obligate  himself  to 
in  consideration  of  the  "permission"  (lease)  to  occupy  pubHc  land, 
which  is  in  effect  an  assumption  that  Congress  could  and  did  delegate 
the  exercise  of  its  function  to  the  Secretary  of  the  Interior. 

Whereas,  the  fact  is,  that  no  such  delegation  of  its  powers  by 
Congress  was  intended  or  made  by  the  Act. 


That  the  Secretary  of  the  Interior  was  authorized  and  empowered 
without  express  words  in  the  Act  so  declaring  its  intention,  to  impose 
a  covenant  to  pay  a  "rate"  fixed  by  the  Secretary  for  every  electrical 
horsepower  developed  from  the  use  of  the  flow  of  the  water,  as  a 
consideration  to  be  paid  by  the  "permittee"  (tenant)  for  the  permis- 
sion (lease)  to  occupy  public  land. 

W^hereas,  the  fact  is,  that  the  Secretary  of  the  Interior  has  no 
authority  of  law  to  fix  rates  for  anything  nor  power  to  enforce  their 
payment  to  the  United  States  or  to  anybody. 


49 

VI. 

That  the  withdrawal  of  public  land  from  present  disposal  accom- 
panied with  the  official  designation  of  the  withdrawn  public  land  as 
"Forest  Reserve"  or  "National  Forest,"  re-established  the  sovereignty 
and  jurisdiction  of  the  United  States  over  the  public  land  of  the  Forest 
Reserve  or  National  Forest  as  it  was  before  the  Act  of  Admission  of 
California,  arid  concurrently  ousted  the  sovereignty  and  municipal 
jurisdiction  of  California;  and,  further,  by  virtue  of  the  Act  of 
February  15,  1901,  authorized  and  empowered  the  chief  officer  of  the 
Forestry  Department  to  impose  any  additional  covenants  he  elects,  to 
perform  which  th^  permittee  (tenant)  must  obligate  himself  in  con- 
sideration of  the  permission  to  occupy  the  public  land ;  or  to  make  any 
consideration  whatever  that  he  elects,  the  basis  of  a  finding  by  him 
that  the  allowance  of  the  "permit"  (tenancy)  would  be  incompatible 
with  public  interest,  and  therefore  not  allowable. 

Whereas,  the  current  law  is,  that  irrespective  of  whether  the 
withdrawal  of  the  public  land  from  present  disposal  was  made  directly 
by  Act  of  Congress,  or  indirectly  by  an  executive  official  duly  em- 
powered by  Congres^,  and  irrespective  of  the  new  name  given  the 
withdrawn  public  land,  or  the  more  or  less  meritorious  purpose  of  the 
withdrawal,  the  sovereignty  and  municipal  jurisdiction  of  California 
was  not  ousted.  California  became  vested  with  its  sovereignty  and 
municipal  jurisdiction  over  the  public  land  by  the  Act  of  Admission, 
and  whether  the  passing  or  transfer  of  sovereignty  from  the  United 
States  be  described  as  a  cession  or  as  a  grant,  it  was  a  completely 
executed  passing  or  transfer  as  of  the  date  of  the  Act  of  Admission. 
The  United  States  have  no  constitutional  power  to  impair  their  Act 
of  cession  or  grant  of  sovereignty  by  an  Act  of  Congress  no  matter 
what  the  purpose  of  the  Act  may  be.*  Suppose  a  withdrawal  of  public 
land  from  present  disposal  be  lawfully  directed  by  Congress  to  re- 
survey  it,  to  re-examine  it  for  any  reason,  to  arrange  for  a  change  in 
the  mode  of  disposal,  or  for  any  other  reason  or  purpose  Congress  may 
elect  or  for  no  reason  at  all,  is  it  seriously  to  be  contended  that  the 

*  State  of  Illinois  v.  III.  Cent.  R.  Co.,  U.  S.  33  Fed.  721.  "A  grant  in  its 
own  nature  amounts  to  an  extinguishment  of  the  right  of  the  grantor,  and  im- 
plies a  contract  not  to  reassert  that  right.  A  party  is  therefore  always  estopped 
by  his  own  grant." 

*  Balderson  v.  Brady  et.  al.,  Idaho  Supreme  Court,  Nov.,  iQog.  "It  seems  to 
be  intimated  that  the  admission  bill  was  in  some  way  amended  by  the  Act  of 
August  18,  1894,  and  other  amendments  to  the  land  laws  (28  Stat.,  372,  394),  but 
we  know  of  no  power  or  authority  whereby  the  Congress  can  divest  the  State  of  its 
title  to  lands  that  have  been  previously  granted  and  to  which  title  has  vested." 


50 

United  States  sovereignty  thereby  re-establishes  itself  and  ousts  the 
California  jurisdiction?  Is  the  essence  of  sovereignty  over  the  public 
land  in  the  name  of  "Forest  Reserve"  or  "National  Forest"  tacked 
onto  it?  Is  the  essence  of  sovereignty  over  the  public  land  in  the 
fashion  of  the  Mandarin  button  of  a  chief  forestry  official?  The  fact 
is  that  "Forest  Reserve"  or  "National  Forest"  is  still  in  California 
proprietary  public  land  of  the  United  States  subject  to  the  municipal 
jurisdiction  of  the  State.  It  is  silly  to  assume  that  Congress  divested 
itself  of  its  legislative  function  and  delegated  it  to  a  chief  officer  of  the 
Forestry  Department  equally  with  and  independently  of  the  Secretary 
of  the  Interior. 

VIL 

That  the  withdrawal  of  public  lands  from  present  disposal  by  Acts 
of  Congress  for  the  purpose  of  creating  the  Yosemite,  Sequoia,  and 
General  Grant  National  Parks,  completely  effected  the  purpose  of 
Congress  and  created  the  National  Parks,  that  is  to  say,  brought  the 
public  land  withdrawn  from  disposal  from  under  the  sovereign  jurisr 
diction  of  California  and  put  it  under  the  sovereign  jurisdiction  of  the 
United  States  as  land  dedicated  to  a  Governrtiental  purpose  of  the 
Federal    Government. 

Whereas,  the  current  law  establishes  the  fact,  that,  despite  the 
new  names  and  the  Federal  Government  purpose,  the  public  lands  of 
these  so-called  National  Parks  are  still  within  the  sovereignty  and 
municipal  jurisdiction  of  California  precisely  as  if  Congress  had  made 
no  enactment  whatever  concerning  them  or  reserving  them  from 
disposal.*  They  will  continue  to  be  public  lands  subject  to  the 
sovereignty  and  municipal  jurisdiction  of  California  until  such  time  as 
the  Legislature  shall  have  enacted  an  Act  of  cession  of  sovereignty 
to  the  United  States.  The  probable  reason  why  such  an  Act  of  cession 
has  not  been  enacted  by  the  California  Legislature  is  that  because  of 
the  existence,  within  and  surrounded  by  the  withdrawn  public  land, 

*  The  condition  of  Yosemite  National  Park  by  virtue  of  the  Act  of  Con- 
gress undertaking  to  create  it  is  not  the  same  as  Yellowstone  National  Park  or 
parks  and  reservations  in  North  and  South  Dakota,  Montana  and  Washington. 
The  Yellowstone  National  Park  and  the  parks  and  reservations  in  the  States 
named  were  withdrawn  from  the  public  land  before  the  admission  of  the  re- 
spective States  in  which  they  are  situated,  and  the  United  States  in  the  respective 
several  Acts  of  Admission  reserved  sovereignty  over  the  land  of  them.  That 
is  to  say,  the  land  included  within  them  never  came  under  the  jurisdiction  of  the 
State  _  sovereignties.  The  land  of  Yosemite  National  Park  was  under  the  sover- 
eign jurisdiction  of  California  as  public  land  (and  private  land)  for  forty  years 
before  Congress  undertook  to  create  the  National  Park  from  it. 


51 

of  tracts  of  land  owned  by  citizens  of  California,  the  Legislature  has 
not  the  constitutional  power  to  make  the  cession  of  sovereignty. 

Yosemite  Valley  and  Yosemite  National  Park  are  not  the  same. 
Yosemite  Valley,  which  is  entirely  within  the  Yosemite  National  Park, 
was  owned  in  fee  by  the  State  of  California.  The  Legislature,  acting 
within  its  constitutional  power,  made  a  cession  of  its  sovereignty  to 
the  United  States.  The  State  has  never  made  a  similar  Act  of  cession 
of  sovereignty  over  the  Yosemite  National  Park  to  the  United  States. 
The  City  of  San  Francisco  now  owning  land  within  this  park  which  it 
has  acquired  for  municipal  purposes,  and  which  it  cannot  dispose  of  by 
sale  or  gift,  it  is  doubtful  if  the  Yosemite  National  Park  can  ever  be 
created  as  Congress  intended. 

VIIL 

That  the  Secretary  of  the  Interior  and  the  chief  officers  of  the 
several  Departments  having  supervision  over  the  land  of  the  Federal 
jurisdiction  in  reservations  and  parks,  by  virtue  of  the  clauses  of  the 
Act  directing  the  Secretary  to  fix  "general  regulations,"  and  requiring 
the  chief  officers  to  advise  the  Secretary  of  the  Interior  of  their  find- 
ings of  fact  that  any  particular  application  for  a  "permit"  (tenancy) 
is,  or  is  not,  "incompatible  with  public  interest,"  became  respectively 
invested  with  legal  power  to  enter  into  trading  contracts  and  agree- 
ments on  behalf  of  the  United  States  with  applicants  for  "permits  to 
use  rights  of  way  through"  (tenancies  of)  the  public  land,  and  (or) 
of  land  within  the  Federal  jurisdiction. 

Whereas,  the  intent  and  full  legal  measure  of  effect  of  the  law  is, 
that  the  Secretary  of  the  Interior  and  the  chief  officers  of  the  several 
Departments,  became  thereby  respectively  charged  with  certain  spe- 
cific ministerial  duties,  and  the  former  with  one  specific  quasi-judicial 
•  power,  and  with  absolutely  no  other  duties  or  power  whatever,  as 
follows : 

The  Secretary  of  the  Interior  with  the  ministerial  duties,  (i)  Of 
fixing  a  code  of  general  rules  and  forms  which  applicants  for  "permits" 
(tenancies)  would  be  required  to  comply  with  in  order  that  he  (the 
Secretary)  should  thereby  be  fully  informed  as  to  the  legal  qualifica- 
tion of  the  applicants,  and  as  to  the  pertinent  facts  of  what  they 
respectively  applied  for  on  the  public  or  other  lands :  And  (2)  Of 
executing  pro  forma  (by  instruments  of  permit  or  lease)  with  all 
legally  qualified  applicants  the  contracts  of  tenancy  imposing  on  the 
"permittees"   (tenants)   the  two  particular  covenants    (and  no  other 


52 

covenants  whatever)  specified  by  the  Act  of  Congress  as  the  obHga- 
tions  "permittees"  (tenants)  should  assume. 

The  chief  officers  of  the  several  Departments  with  the  ministerial 
duty  of  advising  pro  forma  the  Secretary  of  the  Interior  of  a  single 
fact  of  their  finding,  to  wit:  that  the  particular  ''permit"  (tenancy) 
applied  for  is  "Approved  (or  Disapproved)  as  compatible  (or  incom- 
patible) with  public  interest,"  which  merely  means  that  the  "permis- 
sion" (tenancy)  will  not  (or  will)  interfere  with  the  proper  conduct 
of  the  Federal  purpose  of  its  sovereignty  of  the  land  of  the  reservation 
or  park. 

The  Secretary  of  the  Interior  with  the  quasi-judicial  power  of 
declaring  forfeitures  of  "permits"  (tenancies)  for  actual  breach  of 
their  covenants,  but  for  no  other  reason  whatever. 

Consequences   to   California   of   Erroneous   Assumptions   of   Federal 

°'*'"''-  Sao  Map,  Page  69. 

The  cumulated  effect  on  California  of  these  erroneous  assumptions 
of  Federal  officials  has  become  a  thing  visible  on  the  map  of  the  State. 

Within  the  "National  Forest,"  in  its  present  stage  of  growth 
one-third  of  the  State,  indicated  by  the  shading  on  the  map,  are 
situated  nearly  all  of  the  streams  of  which  the  water  flow  is  commer- 
cially available  for  either  public  or  private  purposes  and  uses. 
Exclusive  of  use  already  made,  it  may  be  said  that  there  will  ultimately 
be  had  in  California  from  the  flow  of  these  streams  not  less  than 
3,000,000  electric  horsepower,  the  irrigation  of  more  than  2r,500,ooo 
acres  of  land,  and  the  domestic  water  supply  of  at  least  10,000,000 
people,  all  of  this  not  for  a  day  or  a  year  but  forever  as  the  word  is 
used  in  describing  the  affairs  of  men. 

Within  the  exterior  boundaries  of  these  areas  of  so-called  National 
Forest  there  are  at  a  rough  estimate  more  than  3,500,000  acres  of  land 
in  private  ownership.  There  is  a  present  resident  population  of  75,000 
citizens  of  California.  They  conduct  three-fourths  of  the  gold  mining 
industry  in  the  State,  a  large  part  of  the  copper  and  other  mining,  all 
of  the  pine  lumbering  and  manufacture,  and  a  notable  amount  of 
agriculture  and  horticulture.  The  region  of  the  National  Forest  is 
altogether  not  only  a  land  offering  unusual  opportunities  for  profit  in 
return  for  effort,  but  is  a  land  attractive  and*  inspiring  to  the  people 
who  come  into  it  simply  to  see  and  live,  beyond  anything  our  country 
offers  elsewhere. 


53 


54 

Given  the  free,  opportunity  of  the  time  in  California  before  there 
came  over  it  the  "taboo"*  of  the  Mandarin  button  of  the  Federal 
Forester,  there  would  ultimately  be  a  continuous  resident  population 
of  a  half  million  where  there  are  now  only  a  seventh  of  this  number, 
and  to  the  other  people  of  these  United  States,  this  land  of  the  National 
Forest  in  California  would  be  as  Switzerland  and  Tyrol  are  to  the 
other  peoples  of  Europe — their  rest-land  and  their  play-land. 

But — consequent  on  the  cumulated  effect  of  these  erroneous 
assumptions  of  Federal  officials  there  has  been  subtracted  from  present 
"free  opportunity"  within  the  National  Forest  in  California  all  of  the 
"free  opportunity"  of  the  use  of  the  flow  of  the  water  of  the  streams, 
besides  other  subtractions  of  "free  opportunity"  which  will  not  be 
referred  to  in  this  discussion. 

Within  the  National  Forest,  the  eminent  domain  and  jurisdiction 
of  California  has  not  been  recognized  as  carrying  with  it  the  right  to 
appropriate  easements  (rights  of  way)  for  the  emplacement  of  the 
water  works  necessary  for  public  purposes  and  uses  of  the  flow  of 
the  water  of  the  streams.  Holders  of  the  State's  franchise  or  permit 
to  appropriate  and  use  water  for  public  purposes  have  been  placed  on 
the  same  footing  with  holders  of  the  State's  franchise  or  permit  to 
appropriate  water  for  private  purposes  and  uses. 

"Permission"  (tenancy)  for  right  of  way  purposes  in  the  National 
Forest  has  been  treated  as  if  it  was  the  license  of  a  more  or  less 
improper  privilege.  Applicants,  whether  qualified  with  intentions  to 
make  public  use  of  the  "permission"  (tenancy)  or  to  make  private  use 
of  it,  have  had  their  applications  arbitrarily  held  up  from  action 
indefinitely,  have  had  them  allowed  and  after  allowance  arbitrarily 
revoked  (their  forfeiture  declared),  and  have  had  their  bona  fides 
arbitrarily  questioned  and  impugned.  The  actual  procedure  of  con- 
sideration of  applications  for  "permits"  in  a  number  of  instances  has 
been  suggestive  of  the  procedure  accompanying  the  issue  of  licenses 
by  municipal  police  authorities. 

The  Secretary  of  the  Interior  has  repeatedly  required  of  applicants 
for  "permits"  (tenancies),  whether  qualified  with  intentions  to  make 
public  use  of  the  "permission"  (tenancy)  or  to  make  private  use  of  it, 
that  they  should  obligate  themselves  to  covenants  of  his  imposition  in 
addition  to  the  covenants  prescribed  by  the  Act  of  Congress,  particu- 
larly to  covenants  requiring  payments  of  money  consideration,  either, 

*  "Taboo."  Def.  n.  Prohibition  of  use  of,  or  approach  to,  water,  under  pain 
of  being  deprived  of  it.  Originally  a  religious  interdict  in  the  Spice  Isles,  v.  t.  To 
put  under  taboo.     (Written  also  tabu.) 


55 

or  both,  a  lump  sum  as  a  fee  at  the  time  of  allowance,  or  an  annual 
"rate"  to  be  paid  per  unit  on  the  estimated  electric  horsepower  develop- 
ment from  the  use  of  the  flow  of  the  water. 

A  ''rate"  imposed  by  the  Secretary  of  the  Interior  on  electric 
power  used  in  public  service,  and  collected,  and  now  being  collected, 
$1.50  per  electrical  horsepower  per  year,  is  nicely  adjusted  to  the 
load-carrying  ability  of  the  infant  industry — just  about  equaling  the 
current  operation  cost  of  producing  the  power — and  obviously  fur- 
thers the  great  National  purpose  of  "Conservation  of  the  Natural 
Resources"  in  California  by  compensating  in  that  State  the  cost  of 
production  of  electric  power  from  water  power  with  the  cost  of  pro- 
duction of  electric  power  from  petroleum. 

The  chief  officer  of  at  least  one  Federal  Department  has  required 
of  applicants  whose  applications  were  referred  to  his  Department,  that 
before  his  approval  as  "not  incompatible  with  public  interest,"  the 
applicants  should  obligate  themselves  by  covenants  of  his  imposition 
as  well  as  by  covenants  imposed  by  the  Secretary  of  the  Interior  and 
covenants  which  are  statutory  by  the  Act  of  Congress.  Particularly 
have  these  covenants  imposed  by  chief  officers  of  Departments  been 
covenants  compelling  money  payments  by  the  applicants  for  alleged 
damages  to  the  public  land,  or  for  alleged  uses  of  the  public  land, — the 
chief  officer  of  the  Department  being  the  sole  judge  of  the  damage  and 
service  alleged. 

So  burdened  with  Federal  Bureau  red  tape  procedure — with  per- 
missions refused — with  permissions  revoked — with  enormous  unpro- 
ductive expense  charges — with  great  wastes  of  time  which  consume 
the  financial  opportunities  of  new  undertakings — with  paternal  "regu- 
lations" of  every  detail  of  applicants'  undertakings — with  childish  rules 
for  business — with  uncertainties  as  to  the  temper  of  Federal  officials 
and  with  uncertainties  of  their  uncertain  law, — has  become  the  appro- 
priation of  the  water  flow  of  the  streams  in  the  region  of  the  National 
Forest  in  California,  that  appropriation  intended  for  public  purposes 
and  uses  is  practically  suspended  where  appropriators  must  have  right 
of  way  easements  on  the  public  land  of  the  National  Forest,  and  only 
appropriations  intended  for  private  purposes  and  uses  by  large,  inde- 
pendently financed  corporations  able  to  buy  a  clear  way  through 
official  obstacles  and  seasoned  into  indifference  to  official  waste  of 
time,  are  being  undertaken. 


56 

The    President    and    Secretary    Ballinger    Influenced    by    Erroneous 
Assumptions. 

The  President  and  Secretary  BalHnger  seem  to  be  acting  under 
the  suggestion  of  all  of  the  erroneous  assumptions  which  have  mis- 
directed the  administration  of  the  Act  of  Congresses  of  February  15, 
1901,  except  the  particular  assumptions  that  the  Secretary  of  the 
Interior  and  chief  officers  of  Departments  have  been  severally  dele- 
gated by  that  Act  the  constitutional  function  of  Congress  to  prescribe 
the  covenants  of  the  "permits"  (tenancies)  on  the  public  and  other 
lands  for  rights  of  way  purposes.  The  President  and  Secretary 
Ballinger  do  not  question  the  economic  and  Governmental  soundness 
of  the  policy  of  imposing  the  particular  covenants  and  conditions  which 
have  already  been  imposed  by  the  Secretary  of  the  Interior  and  chief 
officers  of  Departments  as  consideration  for  "permits"  (tenancies)  of 
the  public  land  for  right  of  way  purposes.  They  would,  they  say,  if 
so  empowered  by  law,  impose  even  more  onerous  covenants  addi- 
tional."^' They  simply  affirm  that  there  has  been  no  authority  of  law 
for  the  imposition  of  any  of  these  covienants  or  conditions  (which 
included  payments  of  charges  or  "rates")  by  Secretaries  of  the  Interior 
and  chief  officers  of  Departments.  The  President  has  therefore  asked 
Congress  to  create  the  authority  of  law  by  enacting  the  covenants  or 
conditions  i^ito  the  statutes  so  that  executive  officials  may  lawfully 
impose  them  on  "permitees"  (tenants)  of  the  public  land  for  right  of 
way  purposes.  The  public  at  large,  misled  by  the  appeals  to  senti- 
ment of  the  advertising  exploitation  given  to  the  unlawful  acts  of 
officials  of  former  President  Roosevelt's  administration  into  believing 
those  acts  regular  and  lawful  because  they  seemed  well  intended,  and 
not  given  to  making  fine  distinctions,  does  not  understand  why  any 
new  enactment  by  Congress  is  necessary,  and  is  suspicious  through 
suggestion  of  the  motives  of  those  who  propose  any  legislation. 

*  Annual  Report  of  Secretary  of  the  Interior  Ballinger.    Dec.,  1909. 

"I  would  therefore  advise  that  Congress  be  asked  to  enact  a  measure  that  will 
authorize  the  classification  of  all  lands  capable  of  being  used  for  water  power 
development,  and  to  direct  their  disposal,  through  this  department,  under  sub- 
stantially   the    following    conditions : 

"1.  That  the  title  to  such  lands  be  reserved  in  the  Federal  Government,  and 
only  an  easement  granted  for  the  purpose  of  developing  and  transmitting  electrical 
power  for  private  and  public  use,  and  for  the  storage  of  waters  for  power,  irri- 
gation, and  other  uses. 

"2.  That  such  easement  be  granted  for  a  limited  period,  *  *  *  and  the 
option  of  renewal.     *    *    * " 

It  would  seem  that  Secretary  Ballinger  means  to  lease  where  he  writes  to 
grant.    There  are  decisions  of  Supreme  Courts  to  the  effect  that  by  the  use  of  the 


57 

Real  Difference  Between  "Conservation"  Policies  Relating  to  Water 
Appropriation  Under  Federal  Control. 

Stripped  clear  of  the  acrimonious,  motive-impugning  discussion, 
which,  expending  itself  in  personalities,  has  suppressed  and  concealed 
the  real  difference  at  issue,  the  real  difference  at  issue  between  Presi- 
dent Taft,  Secretary  Ballinger  and  their  supporters,  on  one  side,  and  a 
very  large  number  of  the  people  led  and  misled  by  the  late  chief  officer 
of  the  Forestry  Department,  Mr.  Pinchot,  on  the  other  side,  is  that 
the  former  maintain  that  a  "permittee"  (tenant)  on  the  public  land  is 
entitled  by  law  to  have  the  covenants  or  conditions  of  his  "permit" 
(tenancy)  predetermined  precisely  and  fixed  in  an  Act  of  Congress, 
while  the  latter  maintain  that  the  administrative  officers  should  not  be 
interfered  with  by  Congress,  because  they  already  put  the  same  cov- 
enants and  conditions  up  to  "permittees"  (tenants)  without  the  aid  of 
Congress  in  the  matter. 

It  is  a  difference  paralleled  by  the  difference  between  a  Court, 
which  has  found  the  accused  guilty  as  charged,  but  wants  to  give  him 
benefit  of  clergy  before  the  Sheriff  hangs  him,  and  a  howling  mob 
without  the  court,  which,  too,  having  found  the  accused  guilty  as 
charged,  would  have  the  Sheriff  do  the  hanging  forthwith  without  any 
benefit  of  Congress.  fiiUlcroft  LiblteT 

word  grant  in  an  instrument  of  conveyance  of  real  property  (an  easement  is  an 
estate  in  real  property)  the  instrument  conveys  all  the  estate  of  the  grantee,  and 
other  decisions  of  Supreme  Courts  that  covenants  in  grants  which  tend  to  defeat 
the  instruments  as  grants  are  null  and  void. 

"3.  That  entry  shall  be  accompanied  by  plans  and  specifications  covering  the 
works  to  be  installed,  and  covering  the  maximum  horsepower  capable  of  develop- 
ment at  such  site ;  also  that  a  substantial  entry  fee  be  paid  to  show  good  faith,  and 
that  a  transfer  to  the  United  States  of  the  necessary  water  rights  to  permit  of  the 
estimated  power  development  to  be  made." 

Secretary  Ballinger's  misapprehension  of  the  elements  of  a  water  right  shows 
very  plainly  here. 

"4.  That  the  construction  period  allowed  entry-men  for  the  development 
of  at  least  25  per  cent  of  such  power  shall  not  extend  beyond  four. years,  or  such 
further  time  as  may  be  granted  by  the  Secretary  of  the  Interior  upon  a  proper 
showing. 

"5.  That  a  moderate  charge  shall  be  made  on  the  capital  invested  or  upon  the 
gross  earnings  of  the  project  for  the  first  ten  years  of  operation,  adjusted  at  each 
subsequent  ten-year  period,  and  equitably  determined  by  appraisement. 

"6.  That  all  rights  and  easements  shall  be  forfeitable  for  failure  to  make 
development  within  the  limitations  imposed,  or  upon  entry  into  any  contract  or 
combination  to  charge  or  fix  rates  beyond  a  reasonable  profit  on  the  investment 
or  combination  to  limit  the  supply  of  electrical  current,  or  failure  to  operate  the 
plant;  and 

"7.  That  all  books  and  accounts  shall  always  be  subject  to  the  inspection  of 
the  department." 


58 

As  for  the  "accused  found  guilty  as  charged,"  who  is  not  appar- 
ently consulted  over  the  mode  of  precedence  to  his  near  end  by  either 
Court  or  mob,  who  or  what  is  he? 

Not  the  appropriator  of  water  for  public  purposes  or  uses,  not  the 
great  soulless  public  service  corporations,  not  the  portentious  preda- 
tory "water  power  trust" — not  these  undesirable  citizens,  or  any  of 
them,  that  Court  and  mob  alike  have  been  fooled  into  thinking  in  their 
Sheriff's  custody  primed  for  the  hanging.  They  are  clear  out  of  it, 
because  the  right  to  appropriate  and  use  the  flow  of  the  water  of  the 
streams  is  sovereign  property  of  the  State,  and  the  State  procures  for 
its  sovereign  property,  by  virtue  of  its  eminent  domain,  the  easements 
for  rights  of  way  on  the  public  land  for  emplacement  of  waterworks. 

But  the  appropriator  of  water  for  private  purposes  and  uses 
is  "the  accused  found  guilty  as  charged" — the  gold  miner,  the  lumber- 
man, the  cattleman,  the  farmer — not  the  "big  fellow"  but  the  "little 
fellow" — the  "ultimate  consumer."  This  is  he  who  President  Taft 
and  Secretary  Ballinger  and  Mr.  Pinchot  and  Congress  and  the  people 
will  catch  with  the  great  chain  net  of  public  opinion  and  the  law 
which  they  have  been  dragging  at  cross  purposes  for  the  honor  of 
landing  the  catch — this  is  he,  "the  ultimate  consumer."  Was  there 
not  a  reward  offered  for  the  discovery  of  the  "ultimate  consumer"? 
There  should  be  a  reward  for  saving  him  from  being  caught  now  that 
he  is  discovered. 

An  Exhibit  of  Federal  Control  of  Water  Appropriation. 

It  has  been  recently  suggested  by  a  United  States  Senator  in  a 
published  interview,  that  although  California  undoubtedly  owned 
the  right  to  use  the  water  of  the  streams,  it  was  necessary  in  the 
best  interest  of  California  for  the  Federal  Government  to  control  the 
use,  as  it  would  require  a  great  many  years  of  Federal  education  before 
California  would  know  how  to  control  its  own  property  properly.  Per- 
haps the  Senator  knows — but,  how  does  he  happen  to  know?  Surely 
not  by  the  control  exhibits  already  made  by  Secretaries  of  the  In- 
terior and  chief  officers  of  departments. 

The  control  undertaken  by  them  over  the  use  of  the  water  of 
Lake  Tahoe  and  the  Truckee  River,  an  interstate  lake  and  river,  as 
both  are  part  in  California  and  part  in  Nevada,  is  an  exhibit  which 
has  been  discussed  in  the  newspapers  and  magazines  without  inform- 
ing anyone  what  it  really  was.  The  map  herewith,  and  the  sketch 
cross  section  profile  with  it,  are  intended  to  illustrate  the  explanation 
of  this  exhibit  of  Federal  control  of  the  use  of  water. 

Soo  Kap,  Page  68. 


59 


■  ^^f>t  ) 


'4'^5£BMV 


60 

The  Truckee  River  naturally  discharges  Lake  Tahoe  in  Cali- 
fornia and  after  60  miles  of  flow  in  California  enters  Nevada,  dis- 
charging itself  a  hundred  miles  inside  of  Nevada  into  Pyramid  Lake. 
The  United  States  has  no  riparian  proprietorship  whatever  along  the 
Truckee  River  in  California,  there  being  no  public  land  touching 
the  river,  and  has  only  a  minor  fraction  of  the  riparian  frontage  from 
public  land  in  Nevada.  The  Federal  Government  officials  thus  appear 
as  basing  their  right  of  invasion  of  the  two  States  on  a  claim  of 
direct  control  of  the  water  flow  by  virtue  of  ownership  of  it,  and  not 
through  ownership  of  land,  by  the  United  States. 

Between  Lake  Tahoe  and  the  California  boundary  the  Truckee 
River  water  falls  very  uniformly  through  its  course  a  total  of  2000 
feet.  Part  of  this  fall,  altogether  about  700  feet,  is  used  by  means  of 
five  electric  power  generating  stations,  the  power  produced  being 
consumed  in  public  service,  a  little  locally,  and  the  larger  part  in 
Nevada  at  Reno,  Virginia  City,  Carson  City  and  Yerington.  None 
of  the  river  water  is  consumed  in  California,  all  of  it  flowing  by  the 
river  into  Nevada  after  passing  the  water  wheels. 

The  United  States  Reclamation  Department  has  diverted  part 
of  the  Truckee  River  water  in  Nevada  and  conducting  it  by  a  canal 
has  distributed  it  for  irrigation  over  lands  in  the  sink  region  (ancient 
dried  up  lake  bed)  of  Carson  River,  for  which  the  Carson  River  did 
not  by  itself  provide  a  sufficient  irrigation  water  supply. 

About  eighteen  months  ago  the  U.  S.  Reclamation  Department 
and  the  public  service  corporation  operating  the  power  stations  seem 
to  have  simultaneously  discovered,  the  former  that  it  wanted  more 
water  from  the  Truckee  River  for  its  irrigation  service,  and  the  lat- 
ter that  it  wanted  more  power  from  the  fall  of  the  water  of  Truckee 
River  together  with  a  cheaper  and  more  certain  opportunity  to  get 
it  than  by  building  more  power  stations  along  the  Truckee  River. 

Thereupon,  a  contract  was  entered  into  between  the  United 
States  by  the  Secretary  of  the  Interior  and  several  chiefs  of  Depart- 
ments (assuming  authority  under  the  Act  of  Feb.  15,  1901),  and  the 
public  service  corporation.  The  contract  is  like  a  diplomatic  treaty 
between  high  contracting  parties  in  that  one  can  read  it  without  find- 
ing out  from  it  what  any  party  expects  to  get — really  get — under  its 
covenants. 

Disregarding  the  formal  words  and  loosely  expressed  covenants, 
and  going  instead  to  the  heart  of  the  matter,  this  is  what  the  public 
service  corporation  expects  to  get  under  it : 


.61 

(i)  The  right  to  tunnel  through  the  mountain  rim  on  the  Nevada 
side  of  Lake  Tahoe,  by  means  of  which  it  will  be  able  to  use  all  of  the 
water  which  would  flow  from  the  lake  in  a  single  fall  of  2000  feet, 
thereby  trebling  the  quantity  of  its  electric  horsepower  output  and 
having  all  the  economy  of  operation  of  a  single  power  station  as 
against  seven  or  eight  along  Truckee  River. 

(2)  The  power  of  the  Federal  Government  to  close  the  natural 
outlet  of  Lake  Tahoe  into  the  Truckee  River  so  that  the  water  will 
have  to  be  discharged  through  the  power  company  tunnel. 

And  this  is  what  the  U.  S.  Reclamation  Department  would  get: 

(i)  The  water  of  Lake  Tahoe  discharged  from  the  power  sta- 
tion into  Carson  River  instead  of  into  Truckee  River — the  same  water 
but  not  any  more  water — which  the  U.  S.  Reclamation  Department 
would  then  conduct  to  the  same  land  which  it  is  now  irrigating  by 
means  of  a  new  canal  from  the  Carson  River  instead  of  the  already 
constructed  canal  from  Truckee  River. 

The  preceding  is  the  practical  businsss  of  the  contract.  Consider 
the  contract  now  as  an  instrument  of  Conservation  by  Federal  control 
of  the  use  of  the  water  flow  of  Truckee  River,  keeping  in  mind  that 
the  chief  officers  of  Federal  Departments  disregarding  the  State 
boundaries  in  providing  for  the  diversion  of  the  flow  of  Truckee 
River  through  California  into  Nevada,  must  assume  that  they  could 
just  as  well  have  provided  for  the  diversion  the  other  way,  from 
Nevada  into  California,  a  plan  of  diversion,  by  the  way,  which  was 
proposed  by  engineers  forty  years  ago  to  supply  San  Francisco  with 
water. 

Referring  to  the  map  and  cross  section  profile  sketch,  it  will  be 
noted  that  diverting  Truckee  River  water  from  Lake  Tahoe  by  means 
of  a  tunnel  through  the  mountain  rim  on  the  California  side,  the  same 
water  could  be  used  through  three  falls,  each  of  2000  feet,  to  produce 
electric  power,  and  the  water  would  then  be  in  a  region  in  California 
in  which  the  land  has  a  productiveness  under  irrigation  double  that 
of  the  land  in  the  Carson  sink  in  Nevada — or  the  water  could  be 
used  for  the  jlomestic  supply  of  San  Francisco  in  place  of  irrigation. 

If  "conservation"  of  the  use  of  water  means  anything  but  a  mean- 
ingless political  "war-cry,"  it  means  getting  all  of  the  use  out  of 
the  flow  of  the  water  that  it  can  be  made  to  give.  Obviously  in  this 
particular  exhibit  the  Federal  control  has  only  provided  for  getting 
one-third  of  the  possible  electric  power  and   not   much   more  than 


{^2 

half  the  possible  irrigation  service.  Apprentice  work  may  be  the 
reason  for  such  a  result  but  the  '*baby  act"  plea  will  not  excuse  it. 
Would  the  State  control  of  the  use  of  the  water  flow  of  Truckee 
River  show  such  a  poor  "conservation"  result?  Hardly — but  Cali- 
fornia has  never  assumed  that  it  could  lawfully  divert  the  water  of 
Truckee  River  from  Nevada,  nor  has  Nevada  ever  assumed  that  it 
could  lawfully  divert  the  water  of  Truckee  from  its  natural  flow 
through  California  directly  into  Nevada  by  a  tunnel  in  the  Nevada 
jurisdiction.  The  Supreme  Court  of  the  United  States  has  invariably 
ruled  agaist  such  doctrine.  It  is  also  quite  beyond  the  legal  power 
of  a  public  service  corporation,  or  the  legal  power  of  any  citizen, 
by  a  contract  with  anybody,  to  take  outside  of  its  jurisdiction,  the 
sovereign  property  of  California  in  the  use  of  the  flow  of  the  Truckee 
River  within  its  own  jurisdiction.  The  contract  after  all  is  only  an 
exhibit  of  a  carelessness  of  official  action  by  chief  officers  of  Federal 
Departments  which  amounts  to  indifference  to  the  current  law  of  the 
rights  of  property.  It  has  not  afifected  the  property  rights  which 
it  was  intended  to  dispose  of  any  more  than  if  the  paper  it  is  engrossed 
on  had  been  left  blank  as  it  came  from  the  paper  mill. 

Another  Exhibit  of  Federal  Control  of  Water  Appropriation.  • 

Another  notable  instance  of  the  ineffectiveness  of  the  Federal 
control  of  the  use  of  the  water  of  streams  in  California  to  promote 
economy  of  cost  to  the  users  of  the  water  is  exhibited  by  the  contract 
which  the  City  of  San  Francisco  was  compelled  to  accept  from  the 
Secretary  of  the  Interior  (Garfield)  before  he  would  allow  the  "per- 
mit" to  the  city  to  appropriate  the  water  of  the  Tuolumne  River  and 
to  use  land  in  Hetch  Hetchy  Valley  for  a  supply  reservoir. 

Hetch  Hetchy  Valley  is  in  the  so-called  Yosemite  National  Park, 
in  fact  its  existence  there  was  the  reason  Congress  had  for  with-, 
drawing  the  public  land  for  the  creation  of  the  Yosemite  National 
Park.  Permission  was  refused  San  Francisco  when  it  first  applied 
for  a  "permit,"  the  ground  of  refusal  given  by  Secretary  Hitchcock 
being  that  the  conversion  of  the  Hetch  Hetchy  Valley  into  a  city 
water  supply  reservoir  would  destroy  the  natural  feature  and  scenic 
beauty  which  Congress  intended  to  preserve  for  all  the  people  of  the 
Nation.  It  is  quite  true  that  the  destruction  of  the  natural  feature 
and  scenic  beauty  of  the  valley  would  disappear  with  its  conversion 
into  a  reservoir.  Still,  although  there  are  other  adequate  and  lower 
costing  water  supplies  than  that  of  Tuolumne  River  available,  the 


63 

city  is  clearly  within  its  rights  in  electing  the  Tuolumne  River,  and 
a  second  application  was  made  for  a  "permit." 

On  this  application  Secretary  of  the  Interior  Garfield  allowed 
a  "permit"  (tenancy)  requiring  the  ratification  by  the  city  of  a  con- 
tract which  obligates  the  city  as  follows: 

(1)  The  city  is  to  buy  all  lands  in  .the  Yosemite  National  Park  then  in  pri- 
vate ownership  and  convey  them  to  the  United  States. 

(2)  The  city  is  to  accept  its  tenancy  under  the  jurisdiction  of  the  Federal 
Government  in  every  respect  surrendering  so  far  as  its  tenancy  is  concerned  every 
legal  right  under  the  municipal  laws  of  California. 

(3)  The  city  is  to  build  a  reservoir  known  as  Lake  Eleanor  Reservoir  in 
another  part  of  the  Park  before  it  builds  a  reservoir  in  Hetch  Hetchy  Valley. 

(4)  The  city  is  to  build  only  such  dams  and  other  structures  as  the  Secre- 
tary of  the  Interior  shall  first  approve,  and  shall  build  them  to  their  ultimate 
magnitude  in  the  first  construction  regardless  of  whether  or  not  the  city  needs 
their  full   service  or  does  not  need   it   for  many  years. 

(5)  The  city  is  to  agree  to  build  no  other  reservoirs  in  the  Tuolumne  River 
watershed  except  the  two  specified. 

(6)  The  city  is  not  to  take  any  water  from  the  watershed  except  the  water 
required  by  the  actual  consumption  of  the  city  from  time  to  time. 

(7)  The  city  is  to  sell  any  surplus  water  collected  by  the  reservoirs  to  two 
irrigation  districts  whenever  the  districts  ask  for  it  at  the  actual  cost  of  storage 
of  the  water,  but  if  the  irrigation  districts  do  not  ask  for  the  water  the  city  must 
waste  it. 

(8)  The  city  may  develop  electric  power  from  the  fall  of  the  water  for  its 
municipal  uses  but  may  not  sell  any  power  to  private  persons  or  corporations 
in  the  city  or  outside,  except,  that  in  case  there  is  a  surplus  over  municipal  uses, 
the  inhabitants  of  the  irrigation  districts  may  ask  for  the  surplus  and  be  entitled 
to  be  supplied  with  it  at  the  cost  of  producing  the  surplus,  which  cost  of  producing 
ibe  surplus  electric  power  from  water  power  is  just  nothing  at  all.  If  the  irriga- 
tion district  inhabitants  do  not  ask  for  the  surplus  electric  power  the  city  cove- 
nants to  waste  it. 

(9)  The  city  is  to  waive  its  constitutional  right  to  litigate  differences  which 
may  arise  over  water  measurements  and  charges  and  over  the  price  of  electric 
power,  with  the  irrigation  districts  or  their  inhabitants,  and  in  lieu  thereof  agrees 
to  accept  without  recourse  the  decisions  of  the  Secretary  of  the  Interior  as  to 
measurements  and  charges. 

(10)  The  city  is  to  quit  and  surrender  its  "permit"  (tenancy)  whenever 
the  Secretary  of  the  Interior  in  his  discretion  revokes  the  permit. 

In  consideration  of  the  city's  covenants  which  have  been  briefly 

stated,  the  city  is  to  have  under  its  "permit"  the  following,  viz : 

(1)  The  privilege  of  building  Hetch  Hetchy  reservoir  after  the  city  was  fully 
using  the  water  supply  which  Lake  Eleanor  reservoir  provided.* 

♦Since  the  preceding  was  in  type  Secretary  Ballinger  (February  28,  1910) 
has  issued  an  order  requiring  San  Francisco  City  officials  to  show  cause  why  he 
should  not  "revoke"  this  privilege  in  a  futurity  event — the  right  to  build  Hetch 
Hetchy  reservoir  after  fully  using  Lake  Eleanor  reservoir  site.  The  politely  ex- 
pressed reason  for  the  order  is  an  alleged  misrepresentation  of  facts  to  Secretary 
Garfield  by  official  representatives  of  the  city.  The  connection  of  alleged  cause, 
first  effect,  and  possible  penalty  is  not  very  clear.  The  incident  simply  adds 
another  exhibit  of  the  inherent  ineffectiveness  involved  in  the  Federal  control  of  the 
use  of  water. 


64 

Considering  that  the  reason  the  city  had  for  asking  the  ''permit" 
to  make  a  reservoir  use  of  Hetch  Hetchy  Valley  was  the  relatively 
low  cost  of  construction,  ($1,000,000),  to  the  quantity  of  water  which 
it  would  hold,  the  privilege  of  building  the  reservoir  after  building 
and  using  to  its  limit  another  reservoir  which  would  cost  $2,000,000 
and  defer  the  building  of  the  Hetch  Hetchy  reservoir  for  at  least 
forty  years,  seems  a  ridiculously  trifling  consideration  in  return 
for  the  city's  obligations  under  the  above  ten  covenants.  The  first 
one,  the  obligation  to  purchase  the  privately  owned  lands  within 
the  park,  would  cost  the  city  more  than  $500,000,  and  the  cost  of  pur- 
chase of  private  property  rights  to  enable  the  city  to  use  the  Lake 
Eleanor  reservoir  site  is  put  at  $1,000,000  by  their  owners. 

The  Act  of  Congress  of  February  15,  1901,  does  not  require  of 
a  "permittee"  the  obligation  of  any  covenants  of  the  nature  of  the 
above,  but  what  could  the  city  do  but  accept  them?  The  land  was 
assumed  to  be  in  the  sovereign  Federal  jurisdiction  as  a  National  Park 
which  would  give  the  United  States  jurisdiction  over  the  appropria- 
tion and  use  of  the  water  flow  of  the  streams  as  well  as  over  the 
land.  And,  anyway,  even  if  the  assumption  was  incorrect,  soldiers 
of  the  United  States  Army  were  in  possession,  and,  as  a  city  official 
who  once  visited  the  Valley  without  a  "permit"  said,  when  it  was 
suggested  to  him  that  the  military  had  no  right  to  order  him  about, 
"Of  course,"  he  said,  "I  know  that.  I  know  that  the  soldiers  have 
no  right  to  order  me  around.  But,  what  are  you  going  to  do  about 
it  when  a  husky  khaki-clad  infantryman  says  to  you,  'Keep  moving 
that  way,'  and  lowers  his  bayonet  to  'charge,'  by  way  of  punctua- 
tion, when  you  happen  to  look  around  to  see  if  he's  following  you 
very  close?  What  are  you  going  to  do  about  it  then?  You're  not 
going  to  stop  to  argue  about  the  rights  of  it.  You're  going  to  think 
fast  about  what  that  bayonet  will  do  to  you  if  you  let  it  catch  up, 
and  then  you're  going  to  'move  on'  and  'move  off,'  that's  what  you're 
going  to  do  about  it." 

The  assumption  that  the  land  of  the  Yosemite  National  Park 
was  land  in  the  sovereign  jurisdiction  of  the  United  States  and  not 
public  land  under  the  municipal  jurisdiction  of  California,  has  been 
made  a  very  costly  assumption  through  loss  of  years  of  time  and  con- 
tingent expense  to  San  Francisco.  For  this  loss  to  the  city  the  law 
officers  of  the  city  are  entirely  responsible,  it  being  part  of  their  busi- 
ness to  inquire  and  ascertain  the  nature  of  the  titles  to  property 
which  the  city  contemplated  acquiring.  Lost  time  and  lost  contin- 
gent expense  are  total  losses.     Nothing  can  be  recovered  from  them. 


65 

The  loss  of  $1,000,000  in  extra  construction  cost  of  the  Lake  Eleanor 
reservoir  over  the  Hetch  Hetchy  reservoir,  and  the  other  losses  which 
would  be  consequent  on  carrying  out  the  other  covenants  of  the 
Garfield  contract  can  be  avoided.  There  is  nothing  but  her  own  indis- 
position and  the  indiscretion  of  her  officials  which  can  stop  San 
Francisco  from  taking  Hetch  Hetchy  Valley  for  its  municipal  water 
supply  system  without  obligation  except  to  the  municipal  law  of 
California. 

In  Conclusion. 

In  review  of  the  foregoing,  it  would  seem,  that  with  the  right 
to  appropriate  and  use  the  water  in  the  streams  which  flow  on,  by, 
or  adjacent  to  public  land,  the  sovereign  property  of  California,  and 
with  the  jurisdiction  of  the  State's  eminent  domain  over  the  public 
lands  with  which  to  procure  easements  of  rights  of  way  for  water 
works  emplacement  for  public  purposes  and  uses,  that  the  imposition, 
through  erroneous  assumptions,  of  the  burdens  of  a  Federal  juris- 
diction over  either  water  use  or  rights  of  way  easements  for  water 
works  on  the  public  lands  in  California  should  be  impossible.  But, 
as  Brer  Jasper  preaches,  "De  sun  do  move."  Anything  is  possible 
in  California.  Californians  are  a  good  deal  of  a  laissez  faire  sort  of 
people.  The  situation  recalls  an  incident  of  the  Lincoln  Birthday 
Memorial  Address  made  by  President  Roosevelt  in  1905.  His  sub- 
ject was  the  uplifting  of  the  negro.  Someone  interrupted,  "What 
will  you  do  if  the  negro  refuses  to  be  helped?"  The  answer  flashed 
back  by  the  President,  'Tf  a  man  stumbles,  help  him.  If  he  lies  down 
you  can  do  nothing  for  him."  So  if  California  people  lie  down — what's 
the  use? 


PRESS   OF 

pi;Uli;i0  Sc  19an  ®rDpn  (Eo. 

509-515  howard  st. 
San  Francisco,  Cal. 


I 


